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

[page 69]
Although plaintiff bases its complaint on the trade dress, including the packaging, of the two devices, in its reply brief plaintiff says that infringement has occurred because the product design alone of the two devices, separate from the packaging, is "virtually identical." Plaintiff cites Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir.1986) for the proposition that post-sale confusion is actionable.

Lois Sportswear was a product configuration case in which an infringer used a pattern identical to Levi Strauss' trademarked stitching pattern on the back of jeans. The Second Circuit's concern in Lois Sportswear was that, although the label may prevent customer confusion at the point of sale, consumers would be confused as to the source of the infringing jeans when they see people wearing the jeans in public, without the labeling, and this may influence their future buying decisions.

[page 70] For reasons already stated, the premise for plaintiff's argument is false. The trade dresses at issue are the products in their packages. Even if the court were to consider the products' designs on their own, the two products are by no means virtually identical. In addition, because the name "Global America" is prominently printed directly on the front of defendants' device and cannot simply be discarded like a label, there is little or no likelihood that potential customers seeing the device attached to steering wheels would be confused as to its source.


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