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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

[page 806]
2. "Post-sale" Confusion

The court notes that although not expressly characterized as such, to the extent that the evidence of actual confusion on the part of providers and/or members can be interpreted as "post-sale" confusion, the court finds that it is not the type of post-sale confusion prohibited by the Lanham Act.

Courts addressing the likely confusion inquiry have considered the likelihood of confusion on three temporal planes: pre-sale, point-of-sale, and post-sale. See generally 3 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, 23.5 (4th ed.1996). Pre- and point-of-sale confusion as to the source or affiliation of a particular product or service may be dispelled by the time of purchase, and thus no harm to plaintiff may occur. See id. Post-sale confusion, on the other hand, involves the confusion experienced not by actual purchasers, but by observers of the purchased product. See id.

[page 807] Although the Tenth Circuit has not yet squarely addressed the issue, the Federal Circuit concluded that the "consideration of post-sale confusion in determining likelihood of confusion is not inconsistent with Tenth Circuit trademark law, and would likely be adopted by the Tenth Circuit if it considered the issue head-on." Payless Shoesource, Inc. v. Reebok Int'l Ltd., 998 F.2d 985, 989 (Fed. Cir.1993) (citations omitted). There, the Federal Circuit held that the district court's failure to consider the effect of post-sale confusion constituted an abuse of discretion. Id. at 990.

The court's research reveals that many of the cases in which post-sale confusion significantly impacted the likely confusion analysis relate to "knock-off" or counterfeit goods. See, e.g., Payless Shoesource, 998 F.2d at 986; Keds Corp. v. Renee Intern. Trading Corp., 888 F.2d 215 (1st Cir.1989); Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir.1987). Post-sale confusion in these types of cases is presumed to negatively affect plaintiff's commercial viability in one of two ways. First, an observer may mistakenly attribute any shoddy workmanship of the look-alike product to the producer of the more expensive product, such that the plaintiff's reputation is compromised. Payless Shoesource, 998 F.2d at 989. Second, although purchasers of cheap, imitation products would not themselves experience confusion as to the authenticity of the product, the purchaser might benefit from the prestige normally associated with the genuine article, and thus the more expensive manufacturer would suffer a loss of sales to the imitator. See Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1455 (9th Cir.1991).

There is no indication that any of the incidents of actual confusion alleged by plaintiff, even if characterized as involving "post-sale" confusion, could ostensibly cause plaintiff to suffer a loss of reputation, good will, or business. Although post-sale confusion is largely concerned with non-purchasers, as the members and providers may be arguably classified, the overriding purpose is to alleviate any potential damage plaintiff may sustain as a result of the post-sale confusion. Thus, post-sale confusion necessarily requires an examination of the universe of relevant customers. Because the evidence of actual confusion advanced by plaintiff does not affect potential purchasers of plaintiff's services, it is insufficient to create an issue of material fact as to actual confusion.

In sum, the court finds that any evidence of actual confusion on the part of providers or members is de minimis for purposes of this action. As the Universal Money court explained,

Evidence of actual confusion of a very limited scope may be dismissed as de minimis: Probable confusion cannot be shown by pointing out that at some place, at some time, someone made a false identification. De minimis evidence of actual confusion does not establish the existence of a genuine issue of material fact regarding likelihood of confusion, especially where, as here, [defendant] has introduced substantial, reliable evidence in support of its motion for summary judgment demonstrating no significant actual confusion in the marketplace.
Universal Money, 22 F.3d at 1535. (citations and internal quotations omitted) (emphasis added). Because Spectrum has failed to offer any significant evidence of actual confusion on the part of its customers, it has failed to allege "sufficient facts of actual confusion showing that there is a genuine issue for trial on the likelihood of confusion issue." Id. at 1536.


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