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

Nitro Leisure v Acushnet, 341 F.3d 1356 (Fed Cir 2003)

The fundamental question examined in Davidoff was the same question considered in Champion — likelihood of confusion — but presented in the context of re-sales of new goods. The context is important because consumers of new goods have different expectations than consumers of used goods. For new goods, any variation of the product from a new condition — even as relatively modest as the obliteration of a name or batch number from the bottom of a container — may signal imitation, counterfeiting, falsity or some other irregularity affecting a customer's decision whether to purchase the product. See, e.g., Societe Des Produits Nestle S.A. v. Casa Helvetia, Inc., 982 F.2d 633, 644 (1st Cir.1992) (finding such differences as configuration, i.e., the number of different shapes of chocolates, and packaging, i.e., whether the packaging is shiny or matte and the colors of the packaging, to be material). For new goods, consumers are likely to be confused by the presence of such "material differences." Davidoff, 263 F.3d at 1302. For used or refurbished goods, customers have a different expectation. They do not expect the product to be in the same condition as a new product. Champion, 331 U.S. at 129, 67 S.Ct. 1136. There is an understanding on the part of consumers of used or refurbished products that such products will be degraded or will show signs of wear and tear and will not measure up to or perform at the same level as if new. Id. at 129-30, 67 S.Ct. 1136. For used or refurbished products, consumers are not likely to be confused by — and indeed expect — differences in the goods compared to new, unused goods. Id. Thus, the tests applied to assess likelihood of confusion by courts will not necessarily be the same when determining trademark infringement in the resale of altered new goods and when considering trademark infringement in the resale of used and refurbished goods.