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Tabberone is pronounced tab ber won
not tay ber own

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


[page 872]
Second, it is equally clear that post-sale confusion as to source is actionable under the Lanham Act. In Steinway, supra, 523 F.2d at 1342, we stated that "[w]e decline to hold, however, that actual or potential confusion at the time of purchase necessarily must be demonstrated to establish trademark infringement" (emphasis in original). While Steinway dealt with pre-purchase confusion, in Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566 (2 Cir.1971), we held that the 1962 amendment to 32 made clear that post-sale confusion was actionable. Id. at 568. In the instant case, this post-sale confusion would involve consumers seeing appellant's jeans outside of the retail store, perhaps being worn by a passer-by. The confusion [page 873] the Act seeks to prevent in this context is that a consumer seeing the familiar stitching pattern will associate the jeans with appellee and that association will influence his buying decisions. Steinway, supra, 523 F.2d at 1342. Clearly, in this post-sale context appellants' labels, most of which having been long since discarded, will be of no help. The Ninth Circuit case of Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817 (9 Cir.1980), is very persuasive on this point. In Blue Bell, the court upheld an injunction preventing the manufacturer of Wrangler jeans from using a back pocket name tag similar to the one used on Levi's jeans. The court held that Wrangler's extensive labeling, including its own name on the very tag at issue, was not sufficient to avoid confusion as to source in the post-sale context. The court held that "Wrangler's use of its projecting label is likely to cause confusion among prospective purchasers who carry even an imperfect recollection of Strauss's mark and who observe Wrangler's projecting label after the point of sale." Id. at 822 (emphasis in original). Precisely the same considerations apply in the instant case. The Polaroid factors therefore must be applied with an eye toward post-sale confusion also.


[page 876]
Also, the record shows the distinct likelihood of post-sale confusion. In light of the undisputed evidence which compels these legal conclusions, summary judgment in favor of appellee was appropriate. In short, we hold that the Lanham Act forecloses one jeans manufacturer from using another jeans manufacturer's distinctive back pocket stitching pattern trademark when the evidence is undisputed that the trademark stitching pattern is [page 877] intimately associated with its owner and the infringing use likely will cause confusion as to the source of the jeans and an unfair shift of goodwill.

 

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