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

any of these persons appear as witnesses. (FF 358). In view of thewidespread industry practice wherein certain manufacturers, including Ski1and Black C Decker, provide repair services for products other than theirown, I find the two or ten returns of respondencs' products to Makita forrepairs to be unpersuasive as to confusion.The complainants did produce three witnesses to support their allegationof actual confusion, but these witnesses did not adequately serve thatpurpose.The three confusion witnesses were generally credible, but acareful review of their testimony reveals that their respective use8 of theterm 89confusion81 are not in accord with the meaning of that term asemployed in complainants' allegation.Complainants argue that I should place great significance in the factthat they were able to elicit testimony to the effect of "I was confused"from each of these witnesses.However, not one of the witnesses purchaseda respondent tool thinking it to be a Makita. (FF 355-57). Each wasclearly aware that the salesman was not trying to sell them a "Makita"product. (FF 354, 356-57). Ms. Fraser, for -le, contacted Makita andinformed them that mother was copying their product. (FF 355).It should also be noted in. this regard that respondents' products areconspicuously and clearly marked, as are complainants'. (FF 359). Inshort, tho evidence of actual confusion is unpersuasive.IV.fNFRINGEMENTIf complainants had proven that they held valid comon law trademarks intheir design, color, and design/color combination of their tools, andconfusion among consumers, one or more of the products producrd or sold byrospondents JspSOn, KO Shin, Tochirdo, Atlrr Group, Union Toch, Jonn Fang,235