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

[page 236]
Finally, McNeil argues that Heartland's individual packets are likely to cause post-sale confusion. The post-sale confusion theory "presumes that `the senior users 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.'" Gucci Am. Inc. v. Daffy's, Inc., 354 F.3d 228, 234 (3d Cir.2003) (quoting Acxiom Corp. v. Axiom, Inc., 27 F.Supp.2d 478, 497 (D.Del.1998)). Therefore, the post-sale confusion theory requires consumers (1) to mistakenly believe that the allegedly infringing product is the plaintiff's [page 237] product, (2) to find the allegedly infringing product to be inferior, and (3) to refuse to deal with the plaintiff in the future, as a result of the inferiority of the allegedly infringing product. As discussed above, we find that the store-brand individual packets are not similar to the individual Splenda packets. McNeil has not presented any other evidence that the Heartland packets have confused consumers, nor has it offered evidence that consumers have found Heartland's products to be inferior to Splenda. Therefore, we find that McNeil has failed to present evidence demonstrating that it is likely to succeed on the merits under this theory.


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