Hotels In Las Vegas

FN13. See also Levi Strauss, 778 F.2d at 1356 n. 5 ("trial courts disfavor deciding trademark cases in summary judgments because the ultimate issue is so inherently factual.").

After consideration of the parties' briefs, oral argument, and the record, we are convinced that material issues of fact exist, in this case, about the likelihood of confusion, including the foundational determinations. A.L.M.N. points out some differences between the two names, [FN14] the nature of the businesses, and the marketing channels used. [FN15] A.L.M.N. also alleges, with some support in the record, that the evidence of actual confusion may be slight in relation to the number of customers who have not been confused by the names. Because we are reviewing a summary judgment order, we are bound to accept as true all evidence and inferences favorable to the party against whom the judgment was rendered. Renaud v. 200 Convention Center Ltd., 102 Nev. 500, 728 P.2d 445 (1986). This standard of review, combined with the inherently factual inquiry of the likelihood of confusion test and the facts of this case, mandates reversal of the district court decision. [FN16]

FN14. A.L.M.N. also suggests, citing 7-11 Minit Markets, Inc. v. Southland Corp., 301 F.Supp. 1000 (D.Nev.1969) as support, that because the Secretary of State allowed both names to be registered, a presumption that the two names are not deceptively similar exists. We reject this contention. Although the Secretary of State may have a duty to reject deceptively similar tradenames (see Op.Nev.Att'y Gen. 151 (1918)), in common law tradename infringement actions in this state the courts, and the courts alone, determine whether a name is deceptively similar. See generally Comment, Utah's Business Name Statutes: "An Open Invitation to Litigation", 1983 B.Y.U.L.Rev. 795, 798-99.