This section contains the nature of the case and procedural background.

P owns all of the intellectual property rights to the character 'Barney,' the well-stuffed Tyrannosaurus Rex with a green chest and stomach, friendly mien, green spots on its back, and yellow 'toeballs.' Barney is readily recognizable to young children, who repeatedly parrot his song, 'I Love You,' often testing the patience of nearby adults. Barney was and is a huge hit. The 'Barney and Friends' show enjoyed the number one Nielsen rating for shows directed at young children. P does not license Barney costumes because of its inability to police the behavior of those who might appear in the costume. P has registered approximately 25 trademarks and obtained hundreds of copyrights with respect to the name 'Barney' and the character's depiction. P sued D alleging copyright and trademark infringement, as well as a state law violation. D operates a retail costume-rental establishment. P alleges that D rented three different forms of a “Duffy” costume to the public, each of which looked like Barney and therefore violated P’s proprietary interests. The court found that the evidence was inadequate to show that D’s costumes were substantially similar to or likely to cause confusion with the Barney character. P had introduced first-hand accounts of adults about children who believed that Duffy was Barney and over 30 newspaper articles evidencing actual confusion between Duffy and Barney. It ruled this evidence hearsay. P appealed, in part, on this issue.

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