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

[page 854]
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. See Acad. of Motion Picture Arts and Sciences, 944 F.2d at 1456; Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 822 (9th Cir.1980). Similarly, in Payless Shoesource, Inc. v. Reebok Int'l Ltd., 998 F.2d 985 (Fed.Cir.1993), the Federal Circuit noted that the 1962 amendments to section 32 of the Lanham Act specifically struck language limiting the scope of the Act to confusion by "purchasers." 998 F.2d at 989. The court held, following decisions including Levi Strauss, that an action for trademark infringement can in fact be based upon the confusion of non-purchasers, such as those who simply observe the purchaser wearing the accused article of clothing. Id. "Post-sale" confusion, the court noted, may be no less injurious to the trademark owner's reputation than confusion on the part of the purchaser at the time of sale. See id. at 989-90.

[page 855] Although surgeons working at hospitals that own Storz endoscopes are not the purchasers of those endoscopes, they are the people who ultimately handle and use the scopes. Further, the evidence indicates that surgeons can affect a hospital's equipment purchasing decisions. Storz submitted evidence of actual confusion on the part of surgeons as to whether malfunctioning Storz endoscopes were original Storz scopes or had been repaired or rebuilt by someone other than Storz.


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