By Rebecca Kirk Fair, Stephen Cacciola and Maggie Hadley ( October 23, 2018, 2:03 PM EDT) -- On Sept. 28, 2018, the United States District Court of the Southern District of New York ruled against a motion to exclude a Squirt survey submitted by the plaintiff in the trademark dispute Hypnotic Hats Ltd. v. Wintermantel Enterprises LLC.[1] The court acknowledged that the survey's presentation of the two competing marks in close proximity — a hallmark of the Squirt survey design — did not replicate marketplace conditions because the two marks generally target separate markets through separate channels, and would rarely be encountered side by side. However, the court opined, "an Eveready survey would also be inappropriate" to measure consumer confusion in this case, as the senior mark "is not 'top of mind.'"[2] This assertion, presented briefly in a footnote as if it were a settled matter, is in reality somewhat contentious....