Tabberone Logo

Tabberone is pronounced tab ber won
not tay ber own

Tabbers Temptations Home | Site Index | Disclaimer | Email Me!
"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

[page 50]
Based on these facts, Big Top argues that these store owners as "customers or purchasers" for Lanham Act purposes in the unique vending machine market. Plaintiff's argument rests on the doctrine of post-sale confusion. Many courts have held that the Lanham Act protects post-sale, as well as point-of-sale confusion. See Payless Shoesource, Inc. v. Reebok Int'l Ltd., 998 F.2d 985, 989 (Fed.Cir.1993) (noting "the widespread recognition by so many other circuits of the importance of post-sale confusion"); see also Chrysler, 118 F.3d at 59. Post-sale confusion refers to the association consumers might make between the allegedly infringing item and the familiar product, thereby influencing their purchasing decisions. See Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872-73 (2d Cir.1986); see also Insty*Bit, 95 F.3d at 672 (trade dress infringement); Keds, 888 F.2d at 222 (citing Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 822 (9th Cir.1980)); Dorr-Oliver, 94 F.3d at 381. The flaw in plaintiff's argument is that none of these cases discuss post-sale confusion by non-purchasers who influence the buying decisions of purchasers where the purchasers are not [page 51] themselves confused as to the source or origin of a product. However, in light of the broad remedial nature of the Lanham Act, there is a strong argument that in some circumstances, a non-purchaser with substantial influence over the buying decision of a purchaser could potentially be deemed a consumer for purposes of a likelihood of consumer confusion analysis.


wordpress analytics