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Zippo Manufacturing Co. v. Rogers Imports, Inc

Citation. 216 F. Supp. 670, 1963 U.S. Dist. 137 U.S.P.Q. (BNA) 413
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Brief Fact Summary.

Plaintiff corporation brought suit alleging trademark infringement and unfair competition against defendant corporation in connection with the manufacture of wind proof cigarette lighters.

Synopsis of Rule of Law.

Surveys may be admitted under two distinct bases: (1) that they are not hearsay because they are not technically offered to prove the truth of the matter asserted, and (2) that they are offered to prove then existing state of mind of the declarant.


Plaintiff corporation brought suit against defendant corporation for trademark infringement and unfair competition in regard to their similar wind proof lighter products. Plaintiff corporation, which had a free repair policy for its product, introduced evidence that they had received a number of the competitor’s products for repair, as consumers were mistaken about which products came from which manufacturers. In response, plaintiff corporation had a number of surveys conducted to ascertain the amount of consumer confusion on the issue.


Whether three surveys conducted to ascertain the existence of consumer confusion between the products of plaintiff and defendant were admissible in evidence?


Yes. Surveys have been admitted under a variety of different theories, including (1) that they are not hearsay, (2) that they are admissible to prove then existing state of mind, and (3) that they are necessary pieces of evidence containing sufficient indicia of reliability to overcome a hearsay objection.


Defendants objected to the introduction of the surveys on a number of different grounds, including the fact that they had been conducted in peoples’ homes rather than in stores, raising doubt as to whether the surveys accurately portrayed the state of mind of the defendants at the time of purchase, which was the relevant time period. The court held, however, that this was not enough to overcome the probative value of the surveys. Moreover, the court held that the method in which the surveys were conducted went to the weight that they should be accorded, not to their admissibility in the first instance.

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