Tabberone is pronounced tab ber won not tay ber own

Tabbers Temptations     www.tabberone.com/Trademarks/ Home | Site Index | Disclaimer | Email Me! "The only thing necessary for the triumph of evil is for good men to do nothing" Edmund Burke

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

From Softman Products v Adobe Systems, 171 F. Supp. 2d 1075 (C.D. Cal. 2001) The first sale doctrine does not apply, however, when an alleged infringer sells trademarked goods that are materially different than those sold by the trademark owner. When the reseller's conduct goes beyond the mere resale of trademarked goods, such conduct may be sufficient to support a cause of action for infringement. Id. A materially different product is not genuine, and therefore its unauthorized sale constitutes trademark infringement. See Enesco Corp. v. Price/Costco Inc., 146 F.3d 1083, 1087 (9th Cir. 1998) (noting that a non-conforming product is not genuine and " '. . . its distribution constitutes trademark infringement' (quoting Warner-Lambert Co. v. Northside Dev. Corp., 86 F.3d 3, 6 (2d Cir. 1996)) In this case SoftMan's conduct goes beyond the mere resale of trademarked goods. Clearly, not just any difference will cause consumer confusion. A material difference is one that consumers consider, on average, relevant to a decision about whether to purchase a product. See Martin's Herend Imps., Inc. v. Diamond & Gem Trading USA, Co., 112 F.3d 1296 (5th Cir. 1997). In this case, the sale of software without access to customer support and technical services is a difference that an average consumer would consider relevant to a decision about whether to purchase a product. [COMMENT - Adobe was unable to prove a lack of support.]