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Subsequent Confusion

Although packaging may prevent confusion at an original point of sale, the product shape or feature may still be protected if there is a potential for confusion in a secondary or post-sale environment. This issue has been raised successfully in several sports car cases where the original manufacturer asserts that a competitor's inferior copy of their car design is detrimental to the original manufacturer's reputation. One court case includes a Lanham Act claim regarding the similarities of the Viper® and the Mongoose sports cars, while another court case was filed to protect the Ferrari Testarossa® from imitators.

In Infringement-Downstream Confusion Tim Snider for the National Legal Research Group discusses subsequent confusion.

Our problem with subsequent confusion is that almost anything could be applied to it. While some of the court's reasoning makes sense, this doctrine can be used to eliminate competition.

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