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

[page 150]
Here Defendants' tree-shaped air fresheners bear a striking resemblance to Plaintiffs' tree-shaped air fresheners.
Several of the above-identified differences are eliminated, however, upon consideration of post-sale confusion. See discussion infra at IV(a)(9)

[page 153]
In any event, while the packaging and layering of the various air fresheners in Defendants' three-pack may somewhat diminish the likelihood of point-of-sale confusion, there remains the issue of post-sale confusion. "Infringement cases have consistently held post-sale confusion as well as point-of-sale confusion to be actionable under the Lanham Act." Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 218 (2d Cir.1999); see Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872-73 (2d Cir.1986). In Nabisco, Inc., the Second Circuit addressed a Lanham Act claim concerning competing goldfish-shaped crackers. In that case, much like the present case, the defendant argued that there was no similarity because the defendants' packaging was very different from the plaintiffs' and the defendants' product was a three-shape mix that was only one-fourth goldfish. The Second Circuit rejected this argument noting that:
Like the district court, we are not persuaded by Nabisco's argument. As for Nabisco's box, many consumers of its crackers will not see the box; they will find goldfish-shaped cheddar cheese crackers served in a dish at a bar or restaurant or friend's house, looking very much like the familiar Pepperidge Farm Goldfish product.... The fact that only one quarter of the crackers in Nabisco's mix are fish ... is helpful to Nabisco, but in our view insufficiently so. Many consumers seeing the crackers ... will recognize a fish reminiscent of Pepperidge Farm's fish.
Nabisco, 191 F.3d at 218.

In the instant case, once a consumer purchases Defendants' product and hangs the tree-shaped air freshener from his or her rear-view mirror, the product is virtually indistinguishable from Plaintiffs', thereby creating a strong likelihood of post-sale consumer confusion concerning the source of the product. See Exhibit 1.

For the foregoing reasons, Plaintiffs' motion for summary judgment is GRANTED.


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