Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Matrix Essentials v. Cosmetic Gallery, 870 F. Supp. 1237 (D.N.J. 1994): "Trademark rights are `exhausted' as to a given item upon the first authorized sale of that item." J. McCarthy, McCarthy on Trademarks § 25.11[1] at 25-61 (3d ed. Release # 2, Apr. 1994). Thus, as a general rule, "`trademark law does not apply to the sale of genuine goods bearing a true mark, even if the sale is without the mark owner's consent.'" Matrix, 988 F.2d at 590 (quoting Shell Oil Co. v. Commercial Petroleum, Inc., 928 F.2d 104, 107 (4th Cir.1991). In the case of damaged goods, however, trademark infringement may occur if "there exists a material difference between the products sufficient to create a likelihood of consumer confusion." John Paul Mitchell Sys. v. Pete-N-Larry's Inc., 862 F.Supp. 1020, 1023 (W.D.N.Y.1994) (citing Societe Des Produits Nestle v. Casa Helvetia, 982 F.2d 633, 640 (1st Cir.1992). Courts will find a "material difference" if the goods are "`seconds' of inferior quality" or have been "taint[ed] ... by mishandling." Henry v. Chloride, Inc., 809 F.2d 1334, 1350 (8th Cir. 1987) (citing Burlington Mills Corp. v. Roy Fabrics, 91 F.Supp. 39, 47 (S.D.N.Y.), aff'd, 182 F.2d 1020 (2d Cir.1950), and Adolph Coors Co. v. A. Genderson & Sons, Inc., 486 F.Supp. 131, 135-36 (D.Colo.1980). In this case, we find that the damage done to Matrix products did not create a likelihood of consumer confusion. The actions undertaken by defendants in no way compromised the quality of Matrix hair products themselves. Furthermore, the minor esthetic damage done to the containers of these products did not create a likelihood that consumers would think that Matrix intentionally distributed shoddy goods. Therefore, the damage done to the product containers in this case did not constitute trademark infringement.