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


[page 549]
1. Gibson's Theories of Purchaser Confusion

Gibson argues that despite the lack of actual confusion at the point of sale, the district court's decision can be affirmed under a theory of either initial-interest confusion (the theory relied on by the district court), post-sale confusion, or some combination of the two. Initial-interest confusion takes place when a manufacturer improperly uses a trademark to create initial customer interest in a product, even if the customer realizes, prior to purchase, that the product was not actually manufactured by the trademark-holder. See PACCAR Inc. v. TeleScan Techs., L.L.C., 319 F.3d 243, 253 (6th Cir.2003); see also J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION 23:6 (4th ed. 1996 & Supp.2005) ("MCCARTHY ON TRADEMARKS") (collecting cases). Post-sale confusion occurs when use of a trademark leads individuals (other than the purchaser) mistakenly to believe that a product was manufactured by the trademark-holder. See Esercizio v. Roberts, 944 F.2d 1235, 1245 (6th Cir.1991), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992); see also MCCARTHY ON TRADEMARKS 23:7 (collecting cases). We conclude that neither initial-interest confusion, nor post-sale confusion, nor any combination of two, is applicable in this case.


[page 552]
b. Post-Sale Confusion

The one published case where we have applied post-sale confusion is also clearly distinguishable from the present case. Esercizio, a trade-dress case, involved Ferrari sports cars which were manufactured in deliberately limited quantities "in order to create an image of exclusivity." Esercizio, 944 F.2d at 1237. The alleged infringer built fiberglass kits intended to be "bolted onto the undercarriage of another automobile such as a Chevrolet Corvette or a Pontiac Fiero" in order to make the "donor car" look like a far-more-expensive Ferrari. Id. at 1238. Our concern in Esercizio was that "Ferrari's reputation in the field could be damaged by the marketing of Roberts' [clearly inferior] replicas." Id. at 1245. Such a concern is not present here, where Gibson concedes that PRS guitars are not clearly inferior to Gibson guitars. See, e.g., Gibson Br. at 5, 23. Accordingly, post-sale confusion cannot serve as a substitute for point-of-sale confusion in this case.

 

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