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Tabberone is pronounced tab ber won
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 488]
Plaintiff's fourth argument is twofold: 1) that there is no evidence of actual confusion at the point of purchase, and 2) that in any event, plaintiff does not participate at this point. Plaintiff argues that therefore plaintiff cannot be held liable for any post-sale confusion. As discussed supra, no evidence of actual confusion is required. Furthermore, under the Lanham Act, post-sale confusion is a cognizable injury. Artus Corp. v. Nordic Co., 512 F.Supp. 1184, 1191 (W.D.Penn.1981). A manufacturer who produces a product bearing a trade dress confusingly similar to a complaining witness' trade dress is liable for placing in the hands of a retailer or wholesaler an instrument of consumer deception. Scotch Whiskey Ass'n v. Barton Distilling Co., 338 F.Supp. 595, 599 (N.D.Ill.1971); Corning Glass Works v. Jeanette Glass Co., 308 F.Supp. 1321, 1326 (S.D.N.Y.1970). Furthermore, a manufacturer who in some manner aids or encourages its distributors to infringe upon another's trademark is liable for any confusion caused. Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 853-54, 102 S.Ct. 2182, 2188, 72 L.Ed.2d 606 (1982); McCarthy, 25:2A at 240-42. Thus, if confusion were found to be likely, plaintiff might be held liable for confusion at any and all stages of distribution.

 

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