While this factor is important, it is not determinative. Further, while somewhat vague, Victoria Yeager testified that she received phone calls regarding confusion as to whether plaintiff endorsed defen dant's services. (Dep. of Victoria Yeager, Ex. H to Stroud Decl., at 134:2-13.) 11 . The parties do not discuss the first two elements of this defense, but rather focus their arguments on the third element, the likelihood of consumer confusion regarding endorsement because of defendant’s conduct. 12 . Furthermore, while defendant argues that its limited reference to plaintiff's name and accomplishment is insufficient to imply endorsement, it fails to proffer any evidence regarding what type of use would imply endorsement for purposes of comparison. Cf. Cairns, 292 F.3d at 1154-55
recognizing the underlying principles of nominative fair use holding that the absence of statements regarding authorization that the defendant used in relation to other products supported applicability of nominative fair use defense holding that the nominative fair use factors replace the traditional sleekcraft factors for likelihood of confusion where nominative fair use is at issue recognizing nominative fair use as an affirmative defense to trademark infringement holding that nominative fair use is an affirmative defense to a prima facie case of likelihood of confusion similar to the fair use defense