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

[page 977]
Nor is it a defense that Valve Dynamics merely gives its customers what they want - inexpensive or price discounted valves. Even if Valve Dynamics' customers request and are provided with reconditioned valves, if the valves are not clearly labeled as reconditioned, subsequent buyers farther down the distribution chain may be confused about whether the valves are reconditioned or factory new. Despite vociferous argument, [page 978] Valve Dynamics has not supplied any authority limiting the likelihood of confusion test to only a seller's immediate buyer. On the contrary, a court in this district has stated that "[t]he likelihood of confusion is not limited to confusion at the initial point of sale; it can be at any point in the chain of distribution or ownership, including post-sale confusion of third parties who later encounter the product." Joy Manufacturing Co., 730 F.Supp. at 1394 (citing Lois Sportswear, USA, Inc. v. Levi Strauss & Co., 799 F.2d 867, 872 (2d Cir.1986)). If, after trial, the jury concludes that, regardless of intent, Valve Dynamics has been responsible for creating, or propagating, a likelihood of confusion, it will make no difference whether Valve Dynamics actually knew which valves that it sold were reconditioned. Instead, such a jury finding would establish that Valve Dynamics is under a legal obligation to determine the history of the valves it sells so as to prevent it from perpetuating its own confusion.


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