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

[page 921]
The ultimate test for unfair competition is exactly the same as for federal trademark infringement, that is "whether the purchaser is likely to be deceived or confused by the similarity of the marks." Interstellar Starship Servs. Ltd. v. Epix, Inc., 184 F.3d 1107, 1110 (9th Cir.1999); Surgical Technologies. Inc., 285 F.3d at 853-854 ("`[l]ikelihood of confusion' is the basic test for ... trademark infringement.'" (citations omitted)). "The law in the Ninth Circuit is clear that `post-purchase confusion,' i.e., confusion on the part of someone other than the purchaser who, for example, simply sees the item after it has been purchased, can establish the required likelihood of confusion under the Lanham Act." Id. "`Post-sale' confusion ... may be no less injurious to the trademark owner's reputation than confusion on the part of the purchaser at the time of sale." Id. In addition, "use of another's trademark in a manner calculated `to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion, may be still an infringement.'" Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1062 (9th Cir.1999).

[page 922]
Adidas sufficiently alleges that ACI's two-stripe design is likely to be confused with the three-stripe mark, including a likelihood of initial-interest, point-of-sale, and post-sale confusion, such that the Court will not determine likelihood of confusion as a matter of law. The Court expressly rejects ACI's argument that confusion cannot occur because its shoe has two stripes instead of three and has the letters "OP" on the heel. The Ninth Circuit applies a pliant multi-factor likelihood of confusion test and only one of the factors is the degree of similarity between the parties' marks. In a similar case in Oregon involving ACI sales of four-stripe shoes, the Oregon Court expressly rejected the "two does not equal three" mathematical argument when ACI asserted it with regard to the four-stripe shoes. Adidas-Salomon AG, 228 F.Supp.2d at 1211. Specifically, the Court stated, "[a]lthough Three-Stripes obviously do not equal four stripes, the issue is not simply the number of stripes. Instead, the issue is whether the total effect of the allegedly infringing design is likely to cause confusion in the minds of an ordinary purchaser." Id. The Court also rejected the contention that applying a brand name to the heel would prevent confusion. Id. at 1211-1212 ("The mere fact that the B.U.M. shoes display the B.U.M. registered trademark does not automatically insulate defendants from liability."); Fuddruckers, Inc. v. Doc's B.R. Others, Inc., 826 F.2d 837, 846 n. 13 (9th Cir.1987) ("Use of differing names or distinctive logos in connection with similar marks can reduce the likelihood of confusion but doesn't always do so [and][t]he issue is properly part of the factual determination left to the jury.").


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