Certain Electric Power Tools, Battery Cartridges, and ... - USITC

discounted to account for the inflating factors I've discussed above, Icannot find that the percentage of recognition evidences secondary meaning.Likewise, I am not persuaded by the results for the other tools that werestudied in the survey with lower percentages of consumer recognition -- aslow as 1.5%.Moreover, the evidence certainly will not support anextrapolation of the survey results to find consumer recognition in thedesign and design/color combination of tools that were not studied in thesurvey, and the case for secondary meaning in these tools must also fail.CONFUSIONInfringement of a trademark means that a significant portion of theconsuming public is likely to confuse the source or sponsorship of theaccused product with that of the trademarked product.aU=:. .Mllllnn nachlnes , suDt4. at 8-9: C u b e sBottles, w, at 5. In Op-o Visa G mauRL4; VaCUInnInv. No. 337-TA-87 at 8-9 (1981) ("(&Bs l"), the Comission adopted the followingconsiderations, set forth in the Restatement of Torts S729, fordetermining likelihood of confusion: (1) the degree of similarity betweenthe designation and the alleged trademark (2) the intent of the actor inadopting the accused design;*(3) the relation in use and manner between thegoods and services marketed by the actor and those marketed by others; and(4) the degree of care likely to be exercised by purchasers. Thesecriteria have been consistently applied by the Comission.nillinnnachines, subra: Braldlnn mhixm * aUL4: -e mQU: sr.mksu.auLrA: Fuses, aUL4...Many courts have found that a 15% - 20% rate of confusion corroborates afinding of likelihood of confusion, being neither small norwe230