9th Circuit Botches "Relatedness of Goods" Inquiry?

The Ninth Circuit recently decided a reverse confusion case against the plaintiff. The decision in Surfvivor Media, Inc. v. Survivor Productions, No. 02-17064 (May 4, 2005) is not particularly interesting, however, except in its assessment of the "relatedness of the goods" factor in the likelihood of confusion analysis. In that paragraph, the court didn't assess whether the goods of the parties overlap, are complementary, or are otherwise related. Characterizing its task as to determine whether customers "could reasonably conclude that the products came from the same source," the court said there was no evidence to suggest that customers would "conclude that the products came from the same source," pointing as well to the near total absence of actual confusion evidence. See id. at 4851. This seems wrong to me in that it both (a) suggests that survey or other actual confusion evidence is required as to what is supposed, in my view, to be a different factor, and (b) collapses the ultimate likelihood of confusion inquiry into the relatedness of the goods factor.

Nevertheless, this precedent may come in handy when representing accused infringers.