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

[page 247]
There are a number of circumstances where confusion is actionable, including where "(1) prospective purchasers believe that the senior user sponsored or otherwise approved of the junior user's trademark; (2) potential consumers initially are attracted to the junior user's mark by virtue of its similarity to the senior user's mark, even though these consumers are not actually confused at the time of purchase; and (3) customers are confused as to the source of the junior user's product when this product is observed in the postsale context." Jordache Enters., Inc. v. Levi Strauss & Co., 841 F.Supp. 506, 514-15 (S.D.N.Y.1993) (internal citations omitted). Cartier asserts that all three of these types of confusion-confusion as to sponsorship, initial interest confusion, and post-sale confusion-are present in this case and are actionable, not in spite of, but indeed because of, the sophistication of the relevant consumer group.

Although the presence of initial confusion by sophisticated consumers is suggested by plaintiffs, this court concludes that the evidence presented is inadequate to make a determination with regard to this factor. No evidence was introduced tending to show that initial or post-sale confusion exists because of, rather than in spite of, the sophistication of the luxury watch consumer and the court declines to speculate on the matter. Further, no evidence was put forth suggesting a sponsorship relationship between the parties or that consumers assume such a relationship and act on that assumption. See Tough Traveler, 989 F.Supp. at 216-17 (lacking evidence of a relationship between the parties, the court should not assume that consumers suppose one exists).


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