Mirage Las Vegas Hotel

Because these foundational facts must be considered before determining the ultimate issue of likelihood of confusion, [FN12] summary judgment resolution of the ultimate issue is usually inappropriate, regardless of whether it is considered legal or factual. One court has noted:

FN12. In Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1099 (2nd Cir.1969), cert. dismissed 396 U.S. 1054, 90 S.Ct. 707, 24 L.Ed.2d 698 (1970), the court noted: These factors are variable and relative and no single one, because of its presence or absence, is, in itself, determinative of a case. Rather, the method of approach requires the trial court to consider and weigh the evidence relative to each of these points and such other points as, in the particular circumstances before it, the court finds applicable; then, from a balancing of the conclusions reached on all these factors, the court decides whether or not the parties are entitled to the relief or protection sought.

By their very nature some of these factors are so hazy and grayish in nature that a summary judgment cannot be granted merely upon perusal of affidavits, except in those rare instances where the facts are so black and white in nature that it can be stated unequivocally that there is no genuine issue as to any material fact and no issues to be resolved at a trial. National Color Laboratories, Inc. v. Philips Foto Co., 273 F.Supp. 1002, 1004 (S.D.N.Y.1967). Another court adds: Appellate courts have cautioned that the questions ordinarily involved in the trade-mark cases do not readily lend themselves to summary judgment. .... It is evident that the likelihood of confusion test is one which is particularly ill-adapted to resolution by summary judgment. Wells Fargo, 358 F.Supp. at 1103-07 (D.Nev.1973). [FN13]