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

[page 398]
7. Quality of Defendant's Product

This factor is primarily concerned with whether the senior user's reputation could be jeopardized by virtue of the fact that the junior user's product is of inferior quality. Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir.1986). The district court found Stanley's products to "have considerable quality," 870 F.Supp. at 430, and Arrow does not contend otherwise.

Relying on Lois Sportswear, however, Arrow argues that the fact that Stanley's products are of high quality is not dispositive because similarities in quality may actually heighten the confusion of consumers after purchase. We agree that similarity in quality does not necessarily hurt Arrow's case. But we cannot go so far as to find the Lois Sportswear result applicable here. There, where similarities in back-pocket stitching on jeans were at issue, we found that similarities in quality could increase the likelihood of confusion after the sale, when passers-by would see similar stitching on precisely the same products - jeans. Id. at 872-73. Here, the pneumatic and hand-held staplers differ in appearance as well as function and price. And while the Lois Sportswear court found that labels identifying the source of the jeans would be discarded after purchase, id. at 873, the housemarks remain on the staplers. Thus, the circumstances creating a risk of post-sale confusion of high quality products in Lois Sportswear court are not present here. This factor does not favor Arrow.


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