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

[page 1291]
Most importantly, on the issue of likelihood of confusion, several factors support the existence of such confusion, especially the actual configuration of the candy. While the fact that the configuration would not be evident until a consumer opened the candy might raise some question as to likelihood of confusion at purchase, confusion in the post-sale context is clearly actionable under the Lanham Act. In the Fourth Circuit, Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145 (4th Cir.1987), recognizes such protection, basing it upon the harm that the possesser of the valid mark could [page 1292] suffer if one seeing or sampling the product after sale regarded it to be of poor quality. The law in other circuits is similar. See, e.g., American Home Prods. Corp. v. Barr Laboratories, Inc., 834 F.2d 368, 371 (3d Cir.1987) (recognizing possibility of post-sale confusion); United States v. Torkington, 812 F.2d 1347, 1352-53 (11th Cir.1987) (post-sale confusion satisfies likely-to-confuse test).


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