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

[page 73]
Defendant also claims that Counts II and V must be dismissed because plaintiffs have failed to allege confusion at the time of purchase. But the law does not take effect only at the point of purchase. As the Second Circuit observed in Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566 (2d Cir.1971), the infringement statute, which originally required a showing that the alleged infringer's use "is likely to cause confusion, or to cause mistake, or to deceive purchasers as to the source or origin of such goods or services," was amended in 1962 to eliminate the italicized language, evincing Congress' intent to prevent confusion, mistake or deception "of any kind, not merely of purchasers nor simply as to source of origin." Id. at 568. Accordingly, the Second Circuit has recognized that post-sale confusion as to the source of the alleged infringer's product is actionable under the Lanham Act. See Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir.1986).

It would be particularly inappropriate to apply a strict point-of-purchase test in the present case because, as the parties conceded at oral argument, radio stations do not acquire programming the way consumers buy pharmaceuticals. Rather, it appears that radio stations are not required to make a purchase decision when they receive programming, but instead that they barter for programming from syndicators such as Westwood One in exchange for a share of commercial time on a program. (Plaintiffs' Brief at 18, n. 5) Accordingly, the relevant question is not whether there is pre- or post-purchase confusion, but whether radio station personnel may become confused while making programming decisions.


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