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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 671]
Furthermore, the portion of the survey exposing consumers to the unpackaged Snappy and Insty*Bit quick-change systems is probative on the likelihood of confusion issue, because the Lanham Act protects post-sale as well as point-of-sale confusion. See Payless Shoesource, Inc. v. Reebok Int'l Ltd., 998 F.2d 985, 989-90 (Fed.Cir. 1993) (Payless); Keds Corp. v. Renee Int'l Trading Corp., 888 F.2d 215, 222 (1st Cir. 1989); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 872 (2d Cir. 1986) (Lois Sportswear). "Post-sale confusion" refers to the association consumers might make between the allegedly infringing item and the familiar product, thereby influencing their purchasing decisions. Lois Sportswear, 799 F.2d at 872-73. The Lanham Act's protection of post-sale confusion stems from the 1962 amendment to 32 of [page 672] the Act, 15 U.S.C. 1114(1), which provides remedies for the infringement of registered trademark. Pub.L. No. 87-772, 76 Stat. 769, 773 (1962). The 1962 amendment included confusion of nonpurchasers as well as direct purchasers by eliminating language in 32 which had restricted the scope of trademark infringement to confusion of "purchasers as to the source of origin of such goods or services." 76 Stat. at 773. Thus, an action for trademark infringement may be based on confusion of consumers other than direct purchasers, including observers of an allegedly infringing product in use by a direct purchaser. See Payless, 998 F.2d at 989; Lois Sportswear, 799 F.2d at 872-73. Although 32 of the Lanham Act protects registered trademarks, rather than trade dress, the Supreme Court's holding in Two Pesos, 505 U.S. at 774-76, 112 S.Ct. at 2760-61, that the same analyses apply to the protection of trademarks and trade dress under 43(a) of the Act leads us to conclude that the likelihood of post-sale confusion may be considered in trade dress infringement actions. See Payless, 998 F.2d at 989-90 (holding that district court, in determining whether accused shoes infringed footwear manufacturer's trademarks and trade dress, had abused its discretion in failing to consider adequately the extent of post-sale confusion between the competing footwear). Post-sale confusion is at issue in the present case because Insty*Bit has demonstrated that consumers are often first exposed to its products in use (that is, outside of the package) and then go to a distributor to find these tools by attempting to match the products on the shelves with the ones they are seeking. See Jeffrey Stitt Aff. 17; Insty*Bit App. at 394-95. We therefore find a genuine issue of material fact as to actual confusion.

 

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