The opinions in these three cases have significant amifications for determining LOC in cyberspace. Surveys designed to measure LOC on the Internet need to ensure that they are capturing real market conditions. Simply comparing similar sounding names or presenting only the homepages of the marks involved may not be sufficient. Researchers ought to design surveys that capture the reality faced by consumers surfing or searching the Internet. If the possibility of confusion stems from the use of search engines, the surveys ought to reasonably reflect these conditions. This is especially important given the additional descriptive information provided in the search engine output. Similarly, if it is unclear whether consumers actually purchase online, the use of Web site information to determine LOC in a store environment may not be appropriate. The key is to design realistic studies and document that they capture real market conditions. The court in mySimon also made an important observation about the nature of confusion on the Internet. The court recognized that, in searching for information on the Internet, consumers are used to finding many sites with similar sounding names. This phenomenon does not automatically imply LOC. It is necessary to demonstrate that the site accused of infringement is causing more confusion than the ordinary noise created by the Internet search process. Thus, to provide a useful assessment of the alleged confusion, surveys ought to measure this noise.
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