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

[page 610]
3. Actual confusion

Evidence of actual confusion is not required, because actual confusion is difficult to prove and the law requires only likelihood of confusion. E.g., Lois Sportswear, 799 F.2d at 875. Although KI cites one incident of actual confusion, its probative value is minimal. The incident arose when one of its own sales representatives picked up three sample "Matrix" chairs from someone who had earlier solicited bids on the chairs and was ready to return the chair samples. A few days later, the customer informed the KI rep that he had picked up one Beetle chair by mistake. NI had won the bid, and Beetle samples had been mixed in with the Matrix samples. In an affidavit, the KI sales rep states that the Beetle chair "stacked perfectly on the authentic Matrix chairs and was impossible to distinguish from the authentic Matrix chairs even after a long examination." (Walsh Aff. at 2.) This evidence does not establish the kind of customer confusion that trade dress law was designed to prevent. There is no evidence that the customer was so confused, pre- or post-sale, that it mistakenly awarded the contract to NI. Any post-sale confusion was quickly remedied by the customer, who called to explain the mix-up. This anecdote proves little one way or the other, and must be evaluated in light of the sophistication of the customers, infra.


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