receipt of a NOCI concerning this Power-Seller, eBay failed to immediately remove the listings. 25 . With respect to some of the entries, the probative value of the chart is limited because it is not possible to discern how long it took eBay to respond to the listings and over what period the sellers were selling potentially infringing listings. Seventeen of the entries also appear to count a seller as having "reappeared” even though the seller's second set of potentially infringing listings were reported on the same date as the first. {Id.; Tr. 161:6— 9.) Moreover, twenty of the entries fail to indicate the date on which Tiffany reported the seller. {Id.) 26 . The statute provides, in pertinent part, that: Any person who shall, without the consent of the reg 796, 806 (9th Cir.2002) (<HOLDING>). The Court need not choose between these two
holding that the nominative fair use factors replace the traditional sleekcraft factors for likelihood of confusion where nominative fair use is at issue holding that an assertion of nominative use gives rise to a modified likelihood of confusion analysis recognizing the underlying principles of nominative fair use holding that nominative fair use is an affirmative defense to a prima facie case of likelihood of confusion similar to the fair use defense holding that even several isolated incidents of actual confusion are insufficient to support a finding of likelihood of confusion