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

[page 497]
This "sophisticated purchaser" rationale generally weighs against the likelihood of confusion. Courts, however, may consider pre-sale and post-sale confusion when evaluating Lapp factor (3). See, e.g., SecuraComm Consulting Inc., 984 F.Supp. at 298-99 (holding that pre-sale and post-sale are actionable). Consideration of pre-sale and postsale confusion are appropriate since the Third Circuit teaches that courts must decide trademark infringement cases based on their own circumstances. See generally Scott Paper, 589 F.2d at 1231.

Pre-sale confusion, or initial interest confusion applies to situations where infringement is based on confusion that creates initial customer interest, even though no actual sale is completed as a result of the presale confusion. See SecuraComm Consulting Inc., 984 F.Supp. at 298-99 (citations omitted). "For example, the likelihood that a potential purchaser of a specialized computer program may be drawn to the junior user [of a mark] thinking it was the senior user, is actionable `confusion'" even though the purchaser's confusion is eventually dissipated over the course of the purchase decisionmaking process. Id. at 298 (citing 3 McCarthy, supra., ? 23:6 (4th ed.1997) (other citations omitted)).

Under post-sale confusion, the senior user's potential purchasers or ongoing customers might mistakenly associate the inferior quality work of the junior user with the senior user and, therefore, refuse to deal with the senior user in the future. See id. at 299. The Third Circuit has not yet directly addressed post-sale confusion with respect to Lapp factor 3, however many courts recognize post-sale confusion. Id. (citing Payless Shoesource, Inc. v. Reebok International Ltd., 998 F.2d 985, 989 (Fed.Cir.1993)) (applying 10th Circuit law; citing support from the 1st, 2d, 4th, 5th, 9th and 11th Circuits).

[page 497]
The court finds that Acxiom has not shown that there is a likelihood of post-sale confusion between products and services of the two companies. Johns testified how injury to Acxiom's reputation can result if negative comments made about Axiom are mistakenly attributed to Acxiom. The court notes, however, that aside from this limited expert witness testimony, Acxiom has presented no evidence showing such a likelihood of postsale confusion. In particular, Acxiom has not shown that Axiom performs inferior quality work or has a negative reputation in any way.


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