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

[page 675]
The Plasticolor court determined that, when it came to mixed-use symbols, such as Ford's trademarks, it must look "for a solution that permits trademarks to be copied as functional features, but minimizes the likelihood that the public will associate the copied mark with the registrant." Plasticolor at 1339. The court recognized that, while packaging, labeling and removable disclaimers could eliminate confusion at the point of sale, such disclaimers cannot effectively reach the public beyond that point. Consequently, the court found that some confusion regarding the source of products with mixed-use symbols must be tolerated.
A floor mat whose upper surface reads `FORD (not authorized by Ford Motor Company)' would obviously attract few customers. Protecting functional copying of trademarks will therefore require that we tolerate at least some confusion as to source or sponsorship after the point of sale. The potential for confusion can be diminished, however, by requiring that the manufacturer of a product that employs a trademark for functional purposes take all reasonable steps to eliminate post-sale confusion consistent with the functional use of the mark.
Plasticolor at 1339.

In addition to the fact that Plasticolor was vacated, the Court finds Defendant's reliance upon that opinion unavailing because the Sixth Circuit has rejected the mixed-use analysis set forth in Plasticolor. "[T]he precedent in this circuit suggests that aesthetic functionality will not preclude a finding of nonfunctionality where the design also indicates source." Esercizio at 1247.


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