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

[page 270]
The presence of the Titan name, while relevant to the issue of purchaser confusion, is not very relevant to the issue of post-sale confusion. The Titan name is difficult to see from a distance of more than a few feet, especially in low light conditions, or when the shoe is worn with long pants. It therefore has little or no value as a counterdesignation of origin in the post-sale context. See Keds Corp. v. Renee Int'l Trading Corp., 888 F.2d 215, 222 (1st Cir.1989).

[page 271]
IV. Post-Sale Confusion

Post-sale confusion can establish a claim of trademark infringement. Lois v. Levi Strauss, 799 F.2d at 872. Post-sale confusion occurs when a consumer sees a product worn by another individual outside of a retail store, wrongly associates the product with the trademark holder, and then allows that association to influence a later purchasing decision. Id. at 872-73.

In this case, post-sale confusion presents a closer question than point-of-sale confusion. Several Polaroid factors are immaterial in the context of post-sale confusion. Those factors include the price differences in the shoes and their different marketing channels. In addition, any physical differences between the products become less apparent when viewed outside of the point of sale, and any identifying labels are more likely to be removed by the purchaser. Adjusting the Polaroid analysis to account for these aspects of the post-sale context, there is at least the possibility of post-sale confusion whenever the market includes two products similar in appearance. However, the circuit has specifically noted that harm to a plaintiff is not inevitable merely because a competing product incorporates a generally similar mark. Vitarroz, 644 F.2d at 967.

In the context of point-of-sale confusion, courts have developed a large body of case law balancing the Polaroid factors, helping define the point at which the mere possibility of confusion becomes the likelihood of confusion. Post-sale confusion, on the other hand, is a relatively new cause of action whose contours are not yet thoroughly defined. The court relies primarily on Lois v. Levi Strauss, 799 F.2d 867 (2d Cir.1986), the circuit's leading post-sale confusion case, for guidance.

[page 272]
The two marks in Lois were "essentially identical." Id. at 873. In this case, the Reebok and Titan side designs are generally similar, with some material differences. However, these differences become less discernable when the Titan is viewed at a distance, an important consideration in assessing post-sale confusion.

[page 272]
As discussed previously, post-sale confusion narrows the Polaroid factors, since differences in price and channels of trade are immaterial to post-sale confusion, and differences in the appearance of the products are minimized in the post-sale context. As a result, courts must be even more cognizant of the fact that balancing the remaining Polaroid factors is not a matter of keeping score, but is instead a helpful tool used to analyze the ultimate question - whether an appreciable number of consumers are likely to be confused as to the source of the products.

[page 272]
Even had Reebok demonstrated a likelihood that an appreciable number of consumers would mistake the Titan for a Reebok shoe, a claim of post-sale confusion requires the additional steps of showing that [page 273] the consumers will perceive something about the product, and that what they observe will affect a later purchasing decision.[23] These steps can often only be inferred. Of course, courts analyzing the likelihood of confusion must necessarily often infer the existence of relevant factors in order to answer the ultimate question. In appropriate cases, these inferences are warranted, and will lead to a finding of post-sale confusion. However, at some point unfounded inferences become too remote from the evidence to support a conclusion that confusion is likely. Courts must be particularly wary of wholly speculative claims in the context of post-sale confusion. As one of the bench's leading experts on the Lanham Act has stated:
Point-of-sale confusion is by far the more important, because it directly affects individuals who are in the market for the particular product. Post-sale confusion may affect future purchasers of the product, but in a more indirect and diffuse manner; post-sale confusion is far less likely to cause erroneous purchases than point-of-sale confusion.
Plasticolor Molded Prods. v. Ford Motor Co., 713 F.Supp. 1329, 1336 n. 8 (C.D.Cal.1989) (Kozinski, J.), vacated by consent judgment, 767 F.Supp. 1036 (1991).

Regardless of whether it occurs at the point of sale or post-sale, a likelihood of confusion still requires the same thing - a showing that an appreciable number of consumers are likely to be confused. Here, the claim of post-sale confusion is wholly speculative[24] and is too far removed from the evidence to permit an inference that confusion was likely. Reebok has simply failed to demonstrate by a preponderance of the evidence that an appreciable number of consumers were likely to be confused as to the source of the Titan in the post-sale context.


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