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


[no page number provided] Disclaimers

Finally, the Court addresses the disclaimers posted at the Joe-College.com retail store and online that defendants argue make clear that their shirts should not be confused with those officially licensed by KU. The Court must consider this evidence as it evaluates the marks as consumers actually encounter them in the marketplace. Plaintiffs argue that the disclaimers are ineffective because they only address confusion at the point of sale and because there is no evidence that consumers actually read the disclaimers, and thus, the disclaimers do not serve to cure point-of-sale confusion.

Plaintiffs first urge that the disclaimers do not deal with initial interest confusion or with post-sale confusion, and thus, do not operate to cure the likelihood of confusion between defendants' T-shirts and officially licensed shirts. The Tenth Circuit has recently explained:

Initial interest confusion is a "bait and switch" tactic that permits a competitor to lure consumers away from a service provider by passing off services as those of the provider, notwithstanding that the confusion is dispelled by the time of sale. See Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 638 (7th Cir. 1999); see also Australian Gold, 436 F.3d at 1238-39. But a court cannot simply assume a likelihood of initial interest confusion, even if it suspects it. The proponent of such a theory must prove it. See McCarthy, supra 23:6, at 23-30 ("[E]ven if the marks are almost identical, initial interest confusion is not assumed and must be proven by the evidence."). Until then, it remains just a theory.[132]
And post-sale confusion exists "when use of a trademark leads individuals (other than the purchaser) mistakenly to believe that a product was manufactured by the trademark-holder."[133]

While plaintiffs may be correct that the disclaimers would not necessarily serve to remedy any initial interest or post-sale confusion, they do not offer much evidence to support that either of these theories apply here. They merely point to Erin Adams' testimony that there is no way for consumers who encounter defendants' apparel to know whether it is licensed or not. There is also some evidence of post-sale confusion provided by the weblog evidence, where anonymous posters ask where they can acquire defendants' T-shirts. But none of this evidence shows that defendants' products serve to lure consumers away from licensed retail providers in the first instance.


Plaintiffs on reconsideration argue that the remaining "Kansas" T-shirts manufactured by defendants will cause post-sale confusion when viewed from the front. As the Court explained in its Order, post-sale confusion exists "when use of a trademark leads individuals (other than the purchaser) mistakenly to believe that a product was manufactured by the trademark-holder."[17] It usually "arises in circumstances involving so-called `knock-off' products in which observers of an allegedly infringing product are confused, to the injury of the trademark owner, by the fact that the alleged infringer has produced counterfeit, imitation, or replica goods of inferior quality."[18]

As the Court noted in its Order, the only evidence plaintiffs offered in support of post-sale confusion is Erin Adams' testimony that there is no way for consumers who encounter defendants' apparel to know whether it is licensed or not and the weblog evidence, where anonymous posters asked where they could acquire defendants' T-shirts. But this evidence is insufficient to establish post-sale confusion as a matter of law. Plaintiffs did not present evidence that the remaining T-shirts are "knock-offs" or imitations; indeed, they agree that the language on the reverse of the T-shirts would never be licensed or condoned in any way by KU. Further, plaintiffs did not present evidence that consumers in a post-sale environment would attribute the language on the back of these T-shirts to KU, or believe that KU sponsored them in any way. Accordingly, the Court declines to find post-sale confusion present, as a matter of law, with regard to these T-shirts.

Finally, the Court notes that it considered the likelihood of confusion factors as a whole in denying plaintiffs' motion for summary judgment. It found that genuine issues of material fact remain, especially with regard to the similarity and strength of the marks such that a reasonable jury could find for either party. The Court declines to disturb this analysis upon reconsideration.

 

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