I had a question about the interplay between these two concepts.

Although the trademark owner typically exhausts her rights once a sale is made, there could still be post-sale confusion that some courts find actionable. For example, the casebook summarizes Hamilton International Ltd. v. Vortic LLC, 13 F.4th 264 (2d Cir. 2021), in which the manufacturer of Hamilton watches sued a competitor for placing refurbished antique parts from its watches into new Vortic watches. The court did not find any infringement because Vortic exercised care in refraining from representing its watches as Hamilton products. In that respect, watch buyers would not be confused as to the source or nature of what they purchased.

But what about those who did not purchase the watch? The face of these Vortic watches displayed Hamilton’s name. If I ask a friend wearing a Vortic watch for the time of day, my friend looks at his Hamilton watch face, and gives me the wrong time, I may derive a lower opinion of Hamilton watches — unaware that its really not a Hamilton watch after all. Wouldn’t this still be infringement under a post-sale confusion theory?

Or, does the answer to this question lie in the fact that many courts do not accept post-sale confusion as actionable infringement? See dissent in Ferrari S.P.A. v. Roberts, 944 F.2d 1235 (6th Cir. 1991) (involving the unauthorized production of “Fauxrraris”). I’d deeply appreciate any insight you can share.