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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 297]
Similarly, the district court found (without much elaboration) that Panduit's labeling and packaging distinguish its ties from those of T & B. T & B picked up this theme in its brief, arguing that packaging is immaterial because regardless of packaging, post-sale confusion is likely to occur. We have previously recognized that post-sale confusion can precipitate a cause of action for trademark infringement, Libman Co. v. Vining Industries, Inc., 69 F.3d 1360, 1362-63 (7th Cir. 1995), cert. denied, 517 U.S. 1234, 116 S.Ct. 1878, 135 L.Ed.2d 173 (1996), and T & B presented evidence which showed that the companies' packaging would not avoid such confusion. Both T & B and Panduit sell their cable ties in bulk packages (i.e., packages containing a large quantity of ties) marked with a label containing their respective names. Evidence presented by T & B showed, however, that some distributors break up the bulk packages, repackaging the cable ties for sale in smaller quantities. See App. at 154 (testimony of James Taggart) and 171 (testimony of William O'Neill). This evidence counters Panduit's arguments that packaging eliminates any likelihood of confusion between the companies' products, and raises issues of fact in this respect as well.

The parties raise some additional arguments in their briefs, but we need not discuss them here since no one factor is controlling and all of the factors must be weighed as a whole. We find, therefore, that the district court erroneously determined that no issues of fact remained with respect to the likelihood of confusion between the products of T & B and Panduit.

 

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