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[page 1251]
"[T]he relevant inquiry is `whether there is a likelihood of confusion resulting from the total image and impression created by the defendant's product or package on the eye and mind of an ordinary purchaser.'" Sally Beauty, 304 F.3d at 979 (quoting McCarthy on Trademarks 8:15).[23] The Tenth Circuit instructs courts to "consider a variety of factors, including: (1) the degree of similarity between the products; (2) the intent of the alleged infringer in designing its product; (3) evidence of actual confusion; (4) similarity in how the products are marketed; (5) the degree of care likely to be exercised by purchasers; and (6) the strength of the trade dress." General Motors, 500 F.3d at 1227 (citing Sally Beauty, 304 F.3d at 972, 979).[24] To be actionable, confusion need not be at the point of sale. See General Motors, 500 F.3d at 1227 ("Recognizing that the Lanham Act was intended to protect the market as a whole from confusion as to the source of a product, we ... hold that the likelihood of post-sale confusion is relevant to the trade dress infringement inquiry.") "The party alleging infringement has the burden of proving likelihood of confusion." Utah Lighthouse Ministry [page 1252] v. Found. for Apologetic Information and Research, 527 F.3d 1045, 1055 (10th Cir. 2008).


FN[26] Predator cites Gamo's use of Predator's copyrighted language on its packaging as further evidence going to likelihood of confusion. While one affiant has claimed that added to the confusion, the court finds that there is insufficient evidence to find that the products, when singly presented, would be confused, at least in part, because consumers would recall specific language describing the other. In other words, Predator has not demonstrated that an ordinary consumer's "mental picture," Beer Nuts, 711 F.2d at 941, will include specific, and relatively extensive, language. Furthermore, the language does not appear on the POLYMAG packaging. Finally, that the language might spark confusion does not necessarily aid Predator in its contention that the red tip on the Red Fire is the source of confusion. If the confusion is caused by a combination of the language, the similar shape, and the color, it is not clear that there is a basis to claim that the red itself is the source of identification and confusion.

Predator also stresses that post-sale confusion is relevant to the analysis. That is true. See General Motors, 500 F.3d at 1227. Here, however, Predator has provided no evidence that consumers, other than those who viewed the items at the point of sale, interact or view the products post-sale in contexts where the source of the product is unclear.

 

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