Au-Tomotive Gold Inc. v. Volkswagen of Am., Inc., No. 08-16005, concerned a declaratory judgment action involving whether the sale by plaintiff of marquee license plates bearing Volkswagen badges purchased from Volkswagen constituted trademark infringement, or whether the sale of the plates was protected by the "first sale" doctrine. The court of appeals affirmed summary judgment for defendants, holding that the "first sale" doctrine did not provide a defense because plaintiff's marquee license plates create a likelihood of confusion as to their origin.
Noteably, however, the court of appeals stated, "We do not base our holding on a likelihood of confusion among purchasers of the plates. Rather, we base it on the likelihood of post-purchase confusion among observers who see the plates on purchasers' cars."
