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

caused by similarity of appearance between the Hakita and surveyed tool,and the results were not based on market ubiquity (familiarity with themajor brand names), one could not expect the same results from otheraccused products that are significanrly different from the models used inthe survey. For example, when presented with a Ta Shin drill -- a nonsurveyproduct bearing very little resemblance to the drill used in thesurvey -- Dr. Sorensen candidly questioned the percentage of erroneousMakita identifications that would be generated by a survey of thatparticular drill. (Sorensen, Tr. 2380-81). Dr. Sorensen's extrapolationis also dubious due to the fact that he did not examine fifteen of theaccused products at all.Of the accused tools he did examine, less thanhalf were physical exemplars. (FF 343).b. gther Actual Confusion EvidenceComplainants alleged that a number of owners of respondents' tools havereturned their tools to Makita for repairs, thereby indicating actualconfusion as to the source of the tools.The evidence adduced at thehearing, however, was far from persuasive.The parties quibble over the question of whether two or ten of therespondents' tools have been returned to Makita.The handful of returnscited by complainants is, for all practical purposes, insignificant in thecontext of ( C 1( C Most importantly, thereturn forms offered by complainants provide no identification, bythemselves, that users thought they were returning a Makita tool, nor didCC234