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

[page 1216]
Finally, Mr. Steed's testimony as to his "lack" of confusion regarding the products implicates another issue: point-of-sale versus post-sale confusion. The Eleventh Circuit has held that the likelihood of confusion analysis does not depend upon confusion of the purchaser at the time of purchase. Rather, the question is whether the public, not the purchaser alone, would be confused by the use of the mark. See United States v. Torkington, 812 F.2d 1347, 1352-53 (11th Cir. 1987).[21] As a general matter, it is again worth noting that Mr. Steed's "inverse-confusion" came about because he was an informed customer. It takes no great leap to conclude that less-informed potential purchasers would be confused at the point of sale. It is also significant, however, that the placement of the defendants' t-shirts on the market, and in the public after sale, would cause the public viewing the t-shirts to associate the shirts with plaintiff, regardless of whether the purchaser himself or herself was confused. See id.; Ferrari S.p.A. Esercizio Fabriche Automobili E Corse v. Roberts, 944 F.2d 1235, 1244-45 (6th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871, 872-73 (2d Cir.1986); Rolex Watch U.S.A., Inc. v. Canner, 645 F.Supp. 484, 488, 493-95 (S.D.Fla.1986). Simply stated, the fact that Mr. Steed was not "actually" confused at the point of sale does not change the likelihood that others would associate defendants' shirts with plaintiff, whether at the point of sale or in the public after sale.


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