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

[page 381]
Although this analysis at first blush appears to foreclose any finding that consumers are likely to be confused, the district court held that the Lanham Act applies not only to point-of-sale confusion, but also to "post-sale confusion" of potential purchasers.

page [382]
The district court found that there was a likelihood of post-sale confusion because various people, including potential foreign purchasers, "would be unable to distinguish Fluid-Quip's clamshells from Dorr-Oliver's when viewing a starch washing line" during tours of industry plants. 894 F.Supp. at 1200. The court reached this conclusion based on the fact that the names cast into the clamshells would not be visible from any distance and photographs of the clamshells showed that some were covered by corn starch dust, making the names difficult to discern. Additionally, the court found it highly relevant that the parts of the outer housings of the two clamshells are interchangeable. Due to this interchangeability, one could expect to find a Dorr-Oliver outer housing on a Fluid-Quip clamshell core. The court reasoned that someone viewing this mixed-manufacturer clamshell in operation might attribute any mechanical problems to Dorr-Oliver, when in fact the problems would be caused by the Fluid-Quip core.

In our judgment, the evidence relied on by Dorr-Oliver and the district court is not sufficient to establish a likelihood of consumer confusion. The proper examination is not whether some people viewing clamshells in industry plants might be confused, but rather whether consumers in the market for clamshells are likely to be confused. Indeed, the Lanham Act is concerned with "customer confusion when choosing to purchase, or not purchase, the items, not public confusion at viewing them from afar." Nike, 6 F.3d at 1229.


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