The New York Law Journal (sub. req.) reports on a big decision from the Second Circuit Court of Appeals:
The U.S. Court of Appeals for the Second Circuit recently delivered a unanimous victory to Bacardi and Anheuser-Busch, affirming the judgment of Judge Harold Baer of the U.S. District Court for the Southern District of New York, who had dismissed trademark infringement claims concerning an orange “O” trademark, brought by Star Industries, the producer of Georgi vodka. …
The decision is noteworthy for its discussion of the law concerning several of the factors in the well-known Polaroid analysis. Of particular interest to trademark practitioners, the court clarified the law in the Second Circuit with respect to trademark searches and bad faith, and again emphasized the need for a plaintiff to provide survey evidence in the absence of evidence of actual marketplace confusion.
The plaintiff did not present any survey evidence. This is becoming the big dilemma in trademark litigation: You are killed without a survey, yet survey after survey is thrown out for methodological flaws. Unless you’ve got the other fellow red-handed, though, it seems there’s no sense in proceeding without making at least some attempt at using a survey to prove LIKELIHOOD OF CONFUSION. The full decision is here.