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

[page 1174]
B. Likelihood of Confusion

Having found that Kompan has established a likelihood of success on its claim that its trademark is distinctive and therefore protectable, I turn now to the issue of likelihood of confusion. Likelihood of confusion refers to the likelihood that an appreciable number of consumers will be misled or confused as to the source of the goods in question. Mushroom Makers v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978), cert. denied 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). This confusion may, but need not, occur at the time of purchase; post-sale confusion as to source is also actionable. Lois Sportswear, U.S.A. v. Levi Strauss & Co., 799 F.2d 867, 872 (2d Cir. 1986). In addition, the owner of distinctive trade dress merits protection against the possibility that a consumer will believe imitative goods are sponsored by or associated with the originator. Id.


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