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


[page 389]
5. The Eighth Polaroid Factor: The Sophistication of the Buyers

Dooney & Bourke contends that consumers who purchase its handbags and those of Louis Vuitton are sophisticated about brand identity. Therefore, according to Dooney & Bourke, this factor weighs in its favor because discerning consumers are less likely to be confused about source, sponsorship, or affiliation. "If the goods are expensive, the reasonably prudent buyer does not buy casually, but only after careful consideration. Thus, confusion is less likely than where the goods are cheap and bought casually." [138]

Louis Vuitton argues that "the significance of this factor depends on the circumstances and the nature of the confusion at issue" because the sophistication of direct purchasers has no effect on post-sale confusion.[139] Moreover, according to Louis Vuitton, Dooney & Bourke's "It Bags" were targeted at consumers who are teenagers and are presumptively not sophisticated.

It cannot be reasonably disputed that consumers of products offered by both Louis Vuitton and Dooney & Bourke are sophisticated and discerning. Moreover, while Louis Vuitton's handbags are, on average, more costly than those sold by Dooney & Bourke, the evidence shows that there is an overlap among consumers of both brands.[140]

This factor slightly favors Dooney & Bourke. On the one hand, consumers of quality, expensive handbags - made by Louis Vuitton, Dooney & Bourke, and other high-end brands - tend to be sophisticated, hyper fashion-conscious, and are not likely to be easily confused regardless of their youth. On the other hand, Louis Vuitton alleges, inter alia, post-sale confusion and the sophistication of direct purchasers does not necessarily bear on those who might be confused in the post-sale context.[141]


FN[112] Id. (quotation marks omitted). Louis Vuitton appears to claim only initial interest and post-sale confusion. Initial interest confusion is defined as "confusion that creates initial customer interest, even though no actual sale is finally completed as a result of the confusion." "[E]ven if the marks are almost identical, initial interest confusion is not assumed and must be proven by the evidence." 4 McCarthy 23:6. Post-sale confusion "can occur when a manufacturer of knockoff goods offers consumers a cheap knockoff copy of the original manufacturer's more expensive product, thus allowing a buyer to acquire the prestige of owning what appears to be the more expensive product." Hermes Int'l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 108 (2d Cir.2000).

 

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