dissenting:
In arriving at the conclusion that the Lois arcuate is likely to cause confusion among potential consumers, the district court resolved various issues of material fact presented by the cross-motions for summary judgment. When a party moves for summary judgment, however, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., — U.S. —, —, 106 S.Ct. 2505, —, 91 L.Ed.2d 202 (1986). Because I am of the opinion that the district judge improperly undertook to decide disputed factual matters and that summary judgment in favor of Levi therefore was unwarranted, I respectfully dissent.
Based upon factual findings as to each of the eight Polaroid factors, the district court concluded that only two of the factors favored Levi — strength of the mark and the degree of similarity between the two marks. With respect to strength of the mark, Lois produced evidence of extensive third-party use of the Levi arcuate. The widespread use of virtually identical marks makes it difficult to identify goods as emanating from a particular source. To be considered strong, the mark must be associated in the public mind with the goods in question or their maker. So far, there is no credible evidence in the record that consumers focus their attention on backpocket stitching when purchasing jeans. Indeed, the evidence is that Levi employs several trademarks other than the arcuate to focus public attention on its jeans. These include a red or orange fabric tag with the word “Levi” in white letters attached to the right rear pocket, a leather waistband patch bearing the “Two Horse Brand” trademark, and a copper button bearing the Levi trade name. In addition, Levi’s jeans are sold with other distinctive features, including sewn-in labels, buttons and temporary cardboard labels. In view of the foregoing, the strength of the mark question should have been left for the trier of fact and not decided on the conflicting evidentiary submissions made at the summary judgment stage.
In determining the degree of similarity between the two marks, the district court again undertook the task of weighing the evidence. Consideration of the similarity factor involves not only a comparison of the two marks, but also an examination of the entire context in which the two marks are presented. The Restatement of Torts, from which Judge Friendly extracted the Polaroid factors, includes the comment that “[sjimilarity of appearance is determined on the basis of the total effect of the designation, rather than on a comparison of individual features.” Restatement of the Law of Torts, § 729 comment on clause (a) (1938). In a number of cases, we have held that the prominent display of a manufacturer’s brand name and identifying symbols on its product may effectively mitigate any likelihood of confusion arising from similarity between competing marks. E.g., Lever Bros. Co. v. American Bakeries Co., 693 F.2d 251, 257 (2d Cir.1982); McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1133-34 (2d Cir.1979).
Although the Lois arcuate generally resembles the letter “Y” and the Levi arcuate is more similar to the letter “V,” the marks are substantially identical. However, the evidence is clear that Lois employs a variety of temporary and permanent labels distinguishing its jeans from those of Levi. For instance, Lois jeans are sold with “hang tags” displaying the Lois brand name and the trade symbol of a bull. There are two stitched-on cardboard tags, one measuring approximately five inches by three inches and the other measuring approximately one inch by three inches. Both tags display the Lois brand name and *878bull symbol as well as the legend “imported from Europe” in conspicuous print. Affixed permanently to Lois jeans are various identifying features: a two inch by one inch leather tag attached to the left rear pocket bearing the brand name and bull symbol; a sizing and care tag stitched to the inner waist seam bearing the Lois brand name and indicating that both the fabric and product are made in Spain; a brass button on the waistband bearing the Lois brand name; and a quarter circle leather or fabric patch, stitched to the right front pocket, bearing the bull symbol. Such features have been found sufficient to dispel any possibility that substantially similar arcuates would deceive an “unwary purchaser” into confusing jeans made by Levi with jeans of another manufacturer. Levi Strauss & Co. v. Longley, 272 F.2d 820, 821 (6th Cir.1959) (per curiam). At the very least, then, there is a genuine factual dispute as to the similarity factor, and the district judge should not have decided it before trial.
Recognizing the “small” likelihood that a consumer would purchase Lois jeans thinking they were made by Levi, 631 F.Supp. at 747, the district court nevertheless concluded that “there is a substantial likelihood of confusion among prospective purchasers viewing the marks in a post-sale context,” at 748. The only evidentiary support for that conclusion was a consumer survey conducted by the market research firm of Bruno & Ridgeway at the behest of Levi. The survey was commissioned for the purpose of determining whether or not the Lois arcuate design was likely to be associated erroneously with Levi when Lois jeans were worn in public and seen by others. The survey consisted of interviewing shopping mall customers before and after showing them a videotape portraying, from a rear perspective, a male model alternately wearing jeans manufactured by Lois, Levi, Wrangler and J.C. Penney. The district court noted that serious methodological flaws in the study substantially undercut its evidentiary value in the point-of-sale context, but apparently relied on it to some extent in concluding that there was a likelihood of confusion in the post-sale context.
There can be no doubt that the study was seriously flawed. For example, no criteria were used for selecting the six locations where the testing took place or to determine what jeans were available in those areas. While it is likely that Levi jeans were available in all of the test locations, the same cannot be said for Lois jeans. Besides failing to depict accurately a point-of-sale situation, the videotape also failed to faithfully reflect realistic post-sale conditions — all identifying marks other than the rear pocket stitching were either removed from the jeans or imperceptible in the videotape, the camera focused on the back pockets, and the tape concluded with close-up shots of the various stitching designs being surveyed. The survey therefore was deficient in both the point-of-sale and post-sale contexts and cannot be relied upon as evidence of likelihood of confusion.
While stressing that “considerable deference” is due the findings of the district court as to each of the Polaroid factors, the majority completely revises several of those findings in reaching the ultimate conclusion that there is a likelihood of confusion as to the source of Lois jeans and as to the relationship between Lois and Levi. Where the district court found a “limited ‘competitive distance’ ” between the products, 631 F.Supp. at 743, the majority finds that the proximity of products factor weighs in favor of Levi. Where the district court found that Levi “has failed to establish with any certainty that it is likely to bridge any gap between the products,” id. at 743, the majority affords weight to Levi’s expressed intention to enter the designer jeans market. The district court determined that Lois jeans are not qualitatively inferior to Levi jeans and that the qualitative advantage of the Lois product “may serve to differentiate the products with consumers,” id.; the majority finds that the good quality of the Lois product may increase the likelihood of confusion as *879to source. Although the district court found “a relatively high degree of sophistication” on the part of the Lois jeans purchasers, id., a finding that ordinarily would be considered favorable to Lois, the majority says that the sophisticated buyer is more likely to be confused by similar stitching patterns.
While a district court’s decision respecting likelihood of confusion, based on the relative weight given to each of the findings, represents a conclusion of law reviewable on appeal, “the district court’s determination of each of the Polaroid factors is a finding of fact to which the clearly erroneous standard is applicable.” Plus Products v. Plus Discount Foods, Inc., 722 F.2d 999, 1004 (2d Cir.1983). However, neither the district court nor this court is empowered to engage in fact-finding at the summary judgment stage in the face of such conflicting evidence as has been presented here. “The likelihood of confusion is factually the most complex issue encountered in trademark infringement and false designation of origin litigation.” Burton, Summary Judgments in Trademark Cases, 75 Trade-Mark Rep. 497, 520.1 For that reason, “[disputes between parties as to trade-mark validity and infringement can rarely be determined satisfactorily on a motion for summary judgment.” Marcus Breier Sons, Inc. v. Marvlo Fabrics, Inc., 173 F.2d 29 (2d Cir.1949) (per curiam). Traditionally, we have applied a “stringent standard” for summary judgment in trademark infringement cases. Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 315 F.Supp. 45, 48 (S.D.N.Y.1970) (Mansfield, J.), aff'd, 437 F.2d 566 (2d Cir.1971). Levi’s failure to meet that standard compels my dissent.
. Prior to oral argument, Lois furnished copies of this article for the perusal of the Court. Based on a survey of sixty-three cases where likelihood of confusion was in issue, Burton found that motions for summary judgment were granted in sixty-five percent of the cases. 75 Trade-Mark Rep. 543. The trademark cases surveyed for the article did not include a substantial number of reported decisions or account for denials of summary judgment by unpublished or oral decision during the period under examination. Id. at 498 & n. 9, 541 n. 352. Moreover, one-third of the appeals taken in likelihood of confusion cases resulted in reversals. Id. at 542. Although the Burton article reveals that summary judgment in trademark cases is granted more frequently than generally is assumed, it provides no authority for granting the motion here.