element, as that was the sole purpose for which these witnesses were called. “Thus, even if an ‘average consumer’ analysis was relevant to the substantially indistinguishable element, the [gjovernment presented no evidence that the average consumer would have thought the marks were substantially indistinguishable.” Id. I agree with the district court on both points. It was clearly within the province of the jury, as fact finder, to decide whether the Marco and Burberry marks were substantially indistinguishable. The government nevertheless argues that its statements were correct in light of Montres Rolex, S.A. v. Snyder, 718 F.2d 524 (2d Cir.1983), and Pepe (U.K.) Ltd. v. Ocean View Factory Outlet Corp., 770 F.Supp. 754 (D.P.R.1991). See Montres Rolex, 718 F.2d at 533 (<HOLDING>); Pepe, 770 F.Supp. at 758 (discussing Montres
recognizing auditory similarities between two marks at summary judgment where the plaintiff had linguistic expert evidence that the marks were pronounced similarly holding that the trial judge rather than the jury makes the determination of whether the defendant violated the implied consent law holding that the determination of whether two marks were substantially indistinguishable should be made from the standpoint of an average purchaser rather than an expert recognizing that determination of appropriate sentence to be imposed should ordinarily be determined by the trial court on remand rather than at the appellate level holding that the determination of whether an individual is an independent contractor lies in the common law and not under an express provision of the act