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B. Post-Sale Context

In its order the district court also concluded that the likelihood of post-sale confusion is irrelevant to the section 2320(d)(1)(A)(iii) inquiry. We disagree.

Under section 1114(1) of the Lanham Act, the likely to confuse test is satisfied when potential purchasers of the trademark holder's products would be likely to be confused should they encounter the allegedly counterfeit goods in a post-sale context - for example, in a direct purchaser's possession. Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871, 872-73 (2d Cir.1986); Blue Bell, 632 F.2d at 822; Rolex Watch, 645 F.Supp. at 488, 493-495; Rolls-Royce Motors, 428 F.Supp. at 694; see Syntex Laboratories, 437 F.2d at 568 (likelihood of confusion need not be that of purchasers, any kind of likelihood of confusion is sufficient); see also Boston Professional Hockey Ass'n, 510 F.2d at 1012 (the likely to confuse standard is met where defendant duplicated and sold protected trademarks to the public knowing the public would identify them as those of the trademark holder). Consequently we conclude that the likely to confuse test of section 2320(d)(1)(A)(iii) also is satisfied by a showing that it is likely that members of the public would be confused, mistaken or deceived should they encounter the allegedly counterfeit goods in a post-sale context. See Infurnari, 647 F.Supp. at 59-60; Gonzalez, 630 F.Supp. at 896.

This conclusion is supported by the policy goals of the Trademark Counterfeiting Act. Like the Lanham Act, the Trademark Counterfeiting Act is not simply an 1353*1353 anti-consumer fraud statute. See Infurnari, 647 F.Supp. at 59-60; Gonzalez, 630 F.Supp. 896. Rather, a central policy goal of the Act is to protect trademark holders' ability to use their marks to identify themselves to their customers and to link that identity to their reputations for quality goods and services.[6] S.Rep. No. 526, at 1-2, 4-5, 1984 U.S.Code Cong. & Admin.News, at 3627-28, 3630-31; H.R.Rep. No. 997, at 5-6; see Infurnari, 647 F.Supp. at 59-60; Gonzalez, 630 F. Supp. at 896; see also Lois Sportswear, 799 F.2d at 872 (same conclusion with respect to the Lanham Act), E. Remy Martin & Co. v. Shaw-Ross International Imports, Inc., 756 F.2d 1525, 1530 (11th Cir.1985) (same); Rolex Watch, 645 F.Supp. 488, at 493-495 (same).

It is essential to the Act's ability to serve this goal that the likely to confuse standard be interpreted to include post-sale confusion. A trademark holder's ability to use its mark to symbolize its reputation is harmed when potential purchasers of its goods see unauthentic goods and identify these goods with the trademark holder. H.R.Rep. No. 997, at 5-6; see Lois Sportswear, 799 F.2d at 872-73; Remy Martin, 756 F.2d at 1530; Grotrian, Helffrich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331, 1342 (2d Cir.1975). This harm to trademark holders is no less serious when potential purchasers encounter these counterfeit goods in a post-sale context. See Lois Sportswear, 799 F.2d at 872-73; Steinway, 523 F.2d at 1342; Blue Bell, 632 F.2d at 822; Rolex Watch, 645 F.Supp. at 494-95; Gonzalez, 630 F.Supp. 896. Moreover, verbal disclaimers by sellers of counterfeit goods do not prevent this harm.[7]

 

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