Casinos In Las Vegas

FN15. See generally Lininger v. Desert Lodge, 63 Ariz. 239, 160 P.2d 761 (1945); Hotel Syracuse v. Motel Syracuse, 283 A.D. 182, 127 N.Y.S.2d 485 (1954), aff'd, 309 N.Y. 831, 130 N.E.2d 620 (1955).

FN16. We do not, however, conclude that summary judgment is never appropriate in common law tradename actions where likelihood of confusion is an issue. One could conceive of situations where, even viewing the evidence in a light most favorable to the non-moving party, the facts are so black and white that a full trial would be unnecessary.

Finally, we must decide whether the lower court erroneously determined that certain logs, prepared in a wise attempt to document the confusion that occurred, are inadmissible hearsay. The Rosoffs, who visited the Mirage hotel and casino in Las vegas, submitted, as proof of the actual confusion that has occurred, three logs, prepared by the desk clerks and Mrs. Rosoff, allegedly documenting approximately five hundred incidents where telephone callers, taxicab drivers, customers, and others confused the two businesses. These entries reflect, for example, a variety of telephone calls seeking guests not at the Mirage Motel, confirming non-existent reservations, and the like.

Hearsay is an out of court statement "offered in evidence to prove the truth of the matter asserted." [FN17] The written statements made by the desk clerks (e.g., on May 1 Mr. X phoned the Mirage, intending to reach La Mirage) were made out of court, at the motel. Moreover, these statements were being used in an attempt to prove the truth of the matter asserted (that Mr. X, confused, phoned the Mirage on May 1), to illustrate that further confusion by customers is likely. As a result, the district court correctly concluded that the logs contained hearsay.