dissenting.
I respectfully dissent from the majority’s decision that a reasonable jury could not conclude that AT & T’s use of the word “Universal” on its multiuse financial and phone card is likely to cause confusion as to the source of the AT & T Universal card or UMC’s products and services. I think UMC presented enough evidence that, when taken in the light most favorable to it, a reasonable jury could find in its favor. Additionally, I think the district court erred when it granted AT & T summary judgment despite UMC’s repeated requests for discovery. Applying the same summary judgment standard that the majority articulated, I would find that there is a genuine issue of material fact in dispute.
UMC’s evidence includes the fact that in a nine month period, in a limited geographic area, 400 AT & T cardholders attempted to use their cards in UMC’s ATMs. The AT & T card displays the word “Universal” in the upper right-hand corner of the card, the AT & T logo in the upper left-hand corner, and the Visa logo in the lower right-hand corner. *1539Thus, a cardholder might think that the AT & T card is sponsored both by Visa and by Universal. Additionally, AT & T’s own expert found some evidence of actual confusion.
Moreover, as the majority acknowledges, UMC submitted affidavits from two employees that showed actual confusion on the part of AT & T customers. Marilyn Campo, UMC’s Special Projects Coordinator, stated that she conducted a phone survey of 64 AT & T cardholders who had used their card in one of UMC’s ATMs and that 14 of them (22%) said they used their AT & T card in the UMC ATM because the name “Universal” appeared on both. Mr. Windhorst, Senior Vice-President of UMC, stated that AT & T cardholders were 4.5 times more likely to use their card in UMC’s ATMs than other ATM users who did not use a UMC card. Mr. Windhorst also testified that UMC had received complaints and inquiries from cardholders and financial institutions about any affiliation between AT & T and UMC.
The majority dismisses UMC’s evidence of actual confusion as de minimis, and instead places much weight on Dr. DuPont’s survey, which itself found some actual confusion. The majority, and AT & T, however, fail to explain why UMC’s telephone survey of 64 of the same 400 cardholders that encompassed the universe for Dr. DuPont’s survey yielded a 22% rate of confusion, while Dr. DuPont’s yielded only a 2.6% rate of confusion. Moreover, no explanation is provided that would explain, as anything but confusion, the evidence that AT & T cardholders are 4.5 times more likely to attempt to use their card in UMC’s ATMs than other ATM users who did not use a UMC card. At a minimum, these affidavits call into question Dr. DuPont’s results and clearly raise a material issue of fact that should have been resolved by a jury. UMC also offered the testimony of the Assistant Vice-President of a bank that utilized UMC’s Universal Money Card who expressed concern that the bank’s customers would confuse the AT & T Universal card with UMC’s Universal Money Card.
It is the jury who should weigh the evidence rather than a judge on a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (“at the summary judgment stage 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”). The two cards present significant similarity in both emphasizing the word “Universal.” UMC bolstered that evidence with expert testimony, surveys, and anecdotal evidence of actual confusion. This seems to me to be more than sufficient to establish a genuine dispute of material fact going to the issue of likelihood of confusion. I would reverse the granting of summary judgment.
In addition, UMC’s repeated requests for discovery should have- caused the district court to deny AT & T summary judgment at this stage in the proceedings. The record shows an ongoing attempt by UMC to obtain discovery from AT & T and AT '& T’s repeated failure to comply with UMC’s requests. UMC first sent interrogatories to AT & T requesting the number of open and active AT & T “Universal” accounts and the names and addresses for the accounts within the Kansas City, Kansas and St. Louis, Missouri metropolitan areas. AT & T’s refusal to provide the information prompted UMC’s motion to compel discovery and impose sanctions against AT & T. Judge O’Connor held that UMC’s “geographical designations [were] vague and ambiguous. However, because the requested information is relevant, the court will allow plaintiff to reword these interrogatories and provide the defendants with more specific guidelines.” Dist.Ct. Order at 2, Oct. 17,1991. UMC then remedied the “vague geographical designations” and sent to AT & T substantially the same interrogatories requesting the same information, including names and addresses, for all active and open accounts within a specified thirty mile radius in Kansas City, Kansas and St. Louis, Missouri.1
*1540AT & T responded first by providing raw numbers of its accounts in the two cities. After UMC filed another Motion to Compel Answers on January 13, 1992, AT & T provided additional numbers for open accounts and cards issued in each city for each month. At no time, however, did AT & T provide the name, address, phone number and original date of card issue for each account. Without this information, UMC could not conduct a survey of AT & T cardholders in the specified areas to determine the likelihood of, or actual confusion caused by, use of the name “Universal.”2
The majority dismissed this issue, in part, because it did not think that a survey of AT & T cardholders would “likely produce significant evidence of actual confusion because none of these cardholders has attempted to use their cards in UMC ATMs.” However, this assumes that those who have never used their card at an ATM would not be confused about common sponsorship of the cards and UMC’s ATMs; there is no evidence to support such conjecture, especially at the summary judgment stage. The majority’s position also assumes that those who have used their cards in an ATM, but have not used them in UMC’s ATMs, are necessarily not confused. An equally plausible explanation is that some cardholders regularly use one or two ATMs that are close to work or home and have not yet been faced with using their AT & T card at an unfamiliar ATM. Of course, this is all conjecture because AT & T’s refusal to comply with UMC’s discovery request has precluded UMC from obtaining an answer.
The majority also dismisses UMC’s discovery request because UMC failed to survey the 400 cardholders who did use their cards in UMC’s ATMs — cardholders who presumably were most likely to be confused. However, the majority fails to give credence to UMC’s reasonable complaint that AT & T had already surveyed these cardholders, and therefore perhaps biased the sample, before AT & T released the names and addresses of the cardholders to UMC. AT & T now argues that UMC should be forced to survey only the same cardholders, despite the court’s earlier discovery order.3
Moreover, there is evidence that one of UMC’s employees did contact sixty-four of those same 400 hundred cardholders and determined that fourteen of them, 22%, were actually confused about the sponsorship of the products. Dr. DuPont claimed to have surveyed 303 of the 400 AT & T cardholders and determined that only 8 of them, 2.6%, were confused. Although UMC’s telephone survey may not have conformed to the level of scientific methodology ascribed to Dr. DuPont’s survey, it at least raises a question as to the validity of Dr. DuPont’s results. Additionally, the UMC results should make us even more reluctant to conclude that UMC’s proposed survey of other cardholders would not evidence confusion.
As the majority correctly notes, UMC should have filed a Rule 56(f) affidavit explaining why it could not present facts to oppose AT & T’s summary judgment motion. The affidavit should have also set forth “how additional time [would] enable [it] to rebut [AT & T]’s allegations of no genuine issue of fact.” Dreiling v. Peugeot Motors of Am., *1541Inc., 850 F.2d 1373, 1377 (10th Cir.1988) (quoting Patty Precision v. Brown & Sharpe Mfg. Co., 742 F.2d 1260, 1264 (10th Cir.1984)). However, the instant case is distinguishable from Dreiling and Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828 (10th Cir.1986), because in both those cases the court found that the parties opposing summary judgment did not show how additional time would enable them to rebut the movants’ allegations that no genuine issue of fact remained. Additionally, the Pasternak court found that the nonmovant did not “file an affidavit nor did it otherwise specifically notify the district court of the necessity of conducting additional discovery to permit it to oppose summary judgment.” Pasternak, 790 F.2d at 833. Likewise, in Dreiling, the court noted that the nonmovant requested an immediate trial date and made only general statements about its inability to depose Chrysler’s and Peugeot’s highest officers.
In the instant case, however, the district court and AT & T knew full well about UMC’s pending motion to compel discovery so that it could obtain the information necessary to conduct its own survey to refute AT & T’s evidence that there was little or no confusion. In fact, on October 17, 1991, the court ordered AT & T to provide UMC the requested information once UMC submitted a geographically specific interrogatory. It was the second motion to compel answers to substantially the same questions, filed on January 13,1992, that the court held moot as a result of granting AT & T’s summary judgment request. Appellant Supplemental Appendix at 321. The discovery issue became moot only because the court never enforced its original order despite its ruling that the information UMC sought was “relevant.” Dist.Ct. Order at 2, Oct. 17, 1991. Somehow it seems circular to me to assert that a discovery request is moot because summary judgment has been entered and then also to justify the summary judgment as appropriate because the nonmoving party did not advise the court of the need for more discovery.
Thus, I would hold that despite UMC’s failure to file a 56(f) affidavit, the court was adequately informed that UMC needed the requested discovery to conduct a survey to refute AT & T’s survey and that summary judgment was therefore improper until after AT & T complied with the discovery requests and UMC had enough time to make use of the information. To do otherwise simply rewards AT & T for its evasive and unresponsive answers to interrogatories that the district court previously decided were “relevant.” Dist.Ct. Order, Oct. 17, 1991.
Accordingly, I would reverse.
. UMC requested the following for both cities: For each month from March 1990 to the present, list the name, address, phone number and original date of card issue for each person who is a cardholder of a card of AT & T or Universal Bank bearing the name UNIVERSAL or AT & T UNIVERSAL and whose address is within a 30 mile radius of [812 North 7th Street, *1540Kansas City, Kansas or 1114 Market Street, St. Louis, Missouri], indicating where appropriate whether the card was cancelled or otherwise discontinued during the month; and
For each month from March 1990 to the present, list the name, address, phone number and original date of card issue for each active and open account for a card of AT & T or Universal Bank bearing the name UNIVERSAL or AT & T UNIVERSAL which account address is within a 30 mile radius of [812 North 7th Street, Kansas City, Kansas or 1114 Market Street, St. Louis, Missouri], indicating where appropriate whether the account was closed during the month.
Appellant's Supplemental Appendix at 315-17, Interrogatories 24 & 25.
. AT & T, quite disingenuously, asserts that UMC should have made it and the court aware of UMC's need for additional discovery.
. The majority is also quick to accept Dr. DuPont’s interpretation of the 2.6% rate of confusion as de minimis; however, we were not apprised of the margin of error for this survey. Therefore, Dr. DuPont's assertion that the rate of confusion is de minimis is, at best, conclusory.