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not tay ber own

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


[page 201]
In order to enjoin a competitor's use of a particular trade dress pursuant to 43(a) of the Lanham Act, a plaintiff must prove two things: First, that its own trade dress is inherently distinctive or has acquired a secondary meaning, and, second, that there is a likelihood that the defendant's use of that trade dress will cause confusion with the public. M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 448-49 (4th Cir.1986). "[C]onfusion in the post-sale context is clearly actionable under the Lanham Act." Nabisco Brands, Inc. v. Conusa Corp, 722 F.Supp. [page 202] 1287, 1291 (M.D.N.C.1989), aff'd, 892 F.2d 74 (4th Cir.1989). See also, Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145, 148 (4th Cir. 1987). Moreover, McNeil has made a sufficient argument regarding out-of-package usage of the Tylenol gelcap to satisfy this court that post-sale confusion should be actionable in the instant case.

 

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