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


[page 757]
(e) Classes of Prospective Purchasers

This court has noted that "[t]he eight-factor confusion test is not applied to assess confusion in the abstract; it is focused on the likelihood that commercially relevant persons or entities will be confused." CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 888 F.Supp. 192, 200 (D.Me. 1995) (Hornby, J.); accord Astra, 718 F.2d at 1206-07 ("If likelihood of confusion exists, it must be based on the confusion of some relevant person; i.e., a customer or purchaser."). I must consider the possibility of both point-of-sale confusion and post-sale confusion.


[page 757]
b. Post-Sale Confusion

The inquiry regarding classes of prospective purchasers does not stop at the point-of-sale; I must also consider the possibility of post-sale confusion. See I.P. Lund, 163 F.3d at 44; Chrysler Corp. v. Silva, 118 F.3d 56, 59 (1st Cir.1997). See generally III J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition 23:7 (4th ed.1996). This consideration does not relate to the possibility of confusion at resale, but "rather to the risk that non-purchasers, who themselves may be future consumers, will be deceived." I.P. Lund, 163 F.3d at 44. In [page 758] the post-sale context, the focus remains on whether commercially relevant persons will be confused. See I.P. Lund, 163 F.3d at 44 (noting that the post-sale confusion risk is that "non-purchasers, who themselves may be future consumers, will be deceived") (emphasis added); Astra, 718 F.2d at 1206 ("If likelihood of confusion exists, it must be based on the confusion of some relevant person; i.e., a customer or purchaser.").

In this case, Butcher argues that there is a likelihood that a variety of people will suffer post-sale confusion, including "janitors who actually use the Defendants products, visiting janitors and purchasing agents, and other people who interact with the Defendants' customers and come into contact with the Defendants' products but do not actually hear the Defendants' `compare and save' sales pitch."[4] Pl.'s Objection to Def.'s Mot. for Summ. J. at 6. The plaintiff paints two scenarios in which this confusion could arise. In the first, a janitor who uses Odorite products and is dissatisfied with them may believe that they are Butcher products. This janitor's reports back to a supervisor or purchasing agent could result, Butcher argues, in adverse consequences to its reputation and future sales. Pl.'s Objection to Def.'s Mot. for Summ. J. at 7. In the second, a janitor may mistakenly believe that Odorite's products are privately-labeled Butcher products, and "upon changing jobs or receiving a promotion, he may purchase or advocate the purchase of the less expensive `privately labeled' Odorite products." Pl.'s Objection to Def.'s Mot. for Summ. J. at 7-8.

These possibilities are nothing but speculative. The summary judgment record simply does not include any evidence that the janitors do have influence over buying decisions or that there is any real risk that either of the scenarios the plaintiff fears will actually come to pass. Butcher has submitted an affidavit which states that training janitors often involves overcoming language and literacy barriers, Swidorski Aff. at 3-4, but it is relevant only to whether janitors may be confused, not to whether their confusion matters - i.e., to whether they are commercially relevant.[5] Because there is no evidence of a likelihood of post-sale confusion among commercially relevant persons, I conclude that it is not a danger in this case.


[page 759]
(i) Review and Conclusion

The factors weighing against finding a likelihood of confusion include: (a) the dissimilarity of the marks, largely because of the presence of Odorite's name on the products; (e) the sophisticated classes of prospective purchasers and their information (with respect to point-of-sale confusion because buyers are always informed that the products are Odorite's, not Butcher's, and with respect to post-sale confusion because there is no evidence that post-sale confusion is a concern in this case); and (f) no actual confusion, because the products have competed for a year and one-half and there is no evidence that anyone has ever been confused. The factors weighing in favor of finding a likelihood of confusion include: (b) the similarity of the goods; (c) [page 760] the channels of trade; (d) the relationship between the parties' advertising; (g) Odorite's intent; and (h) the strength of Butcher's marks and dress. Weighing the factors against each other, I conclude that no reasonable jury could find a likelihood of confusion. It is true, of course, that in terms of simple numbers there are only three factors weighing against finding a likelihood of confusion but five factors in favor of finding a likelihood of confusion. Nonetheless, the former are determinative in this case. It would be unreasonable for a jury to conclude that there is a likelihood of confusion as to source where (1) the product bears the Odorite name; (2) all purchasers are told that they are buying an Odorite product, not a Butcher product; (3) there is no evidence of any risk of post-sale confusion; and (4) there is no evidence of actual confusion despite a year and one-half of coexistence. Accordingly, I GRANT Odorite's Motion for Summary Judgment with respect to the trademark and trade dress infringement claims in Counts I and II of Butcher's Complaint.

 

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