reference to evidence of actual confusion gives us some pause. We conclude, however, that the handful of declarations (some from Hansen employees) submitted as evidence do not reliably indicate that Freek’s trade dress is likely to confuse “an appreciable number of people.” See Entrepreneur Media, Inc., 279 F.3d at 1151 (infringe ment exists only when a mark is likely to “confuse an appreciable number of people as to the source of the product”) (emphasis in original); Playboy Enters., Inc. v. Netscape Commc’ns, 354 F.3d 1020, 1026 (9th Cir.2004) (“actual confusion among significant numbers of consumers provides strong support for the likelihood of confusion”) (footnote reference omitted); Nautilus Group, Inc. v. Icon Health and Fitness, Inc., 372 F.3d 1330, 1338 (Fed.Cir.. 2004) (<HOLDING>) (applying Ninth Circuit law). Because the
holding that the district courts finding of actual confusion was improper where the relatively small number of calls presented by nautilus renders this evidence too unreliable holding that survey evidence offered to show actual confusion was properly excludable under rule 403 when it was so flawed that its probative value was outweighed by the risk of prejudice or confusion holding that the district courts finding of no discrimination under title vii was not clearly erroneous because the finding was supported by the record holding that the district courts finding of no discrimination was not clearly erroneous because the finding was supported by the record holding that even several isolated incidents of actual confusion are insufficient to support a finding of likelihood of confusion