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"The only thing necessary for the triumph of evil is for good men to do nothing"
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[page 1334]
Holdings attempts to salvage its survey results by arguing that Mr. Weiss was attempting to measure post-sale confusion. This case clearly is not, however, a post-sale confusion case. Post-sale confusion arises in circumstances involving so-called "knock-off" products in which observers of an allegedly infringing product are confused, to the injury of a trademark owner, by the fact that the alleged infringer has produced counterfeit, imitation, or replica goods of inferior quality. See generally, e.g., Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104 (2d Cir.2000) (alleged infringer produced knock-off replicas of Hermes handbags); Payless Shoesource, Inc. v. Reebok Int'l Ltd., 998 F.2d 985 (Fed.Cir.1993) (post-sale confusion could exist where consumer may attribute any perceived inferior quality of Payless shoes to Reebok, thus damaging Reebok's reputation and image); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir.1986) (allegedly infringing jeans replicated Levi's trademark back pocket stitching [page 1335] pattern); 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition 23:7, at 23-27 to 23-32 (4th ed.2005) (discussing the post-sale confusion doctrine).

In this case, Holdings has not produced any evidence sufficient to raise a triable issue of fact to withstand summary judgment on a post-sale confusion claim. Most obviously, Holdings has not established that Motorcycles has tried to replicate or imitate its goods or that consumers would believe that Motorcycles' t-shirts and hats are knock-offs of Holdings' Big Dogs apparel. Additionally, Holdings has not established that Motorcycles' goods are of inferior quality such that the sale of Motorcycles' products would damage Holdings' reputation and goodwill by virtue of the fact that consumers would attribute the inferior quality of Motorcycles' products to Holdings. In fact, the only evidence of record indicates that Motorcycles' t-shirts retail for approximately twenty dollars each whereas the retail price of Holdings' t-shirts is fifteen dollars or two for fifteen dollars. This suggests that Motorcycles' t-shirts are probably of superior, rather than inferior, quality to Holdings' t-shirts. Thus, Holdings' belated post-sale confusion theory cannot serve as a substitute for the obvious point-of-sale confusion that is at issue in this case. See Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 552 (6th Cir.2005) (post-sale confusion could not serve as substitute for point-of-sale confusion where allegedly infringing products were not clearly inferior to the trademark holder's product).

In sum, then, Holdings has failed to raise a genuine issue of material fact regarding any actual confusion in the marketplace between Holdings' goods and Motorcycles' goods. Accordingly, this factor does not weigh in favor of finding a likelihood of confusion.

 

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