SOCIETE DES PRODUITS NESTLE v. CASA HELVETIA ‘ear 982 F.2d 683 support his contention that Porter was not ‘equally available to the defense because of his status as a paid government informant. ‘There is no per se rule that paid govern ment informants are presumed to be so clearly favorably disposed to the govern: ‘ment that they are not available to eriminal defendants. The defense team knew Port: ev's identity and how to locate him. In- deed, defendant's counsel met with Porter during trial preparations. Spinosa offered no evidence that Porter would not speak to him or that he was otherwise uncoopera- tive? Second, the government did not interfere with any effort by Spinosa to produce Port: er at trial. In fact, the government offered to help Spinosa produce Porter. Spinosa declined to take advantage of the govern ment's offer. ‘There is no evidence that the prosecution attempted to keep Porter out of Spinosa’s reach, ‘Third, Spinosa’s tacties with regard to Porter smack of gamesmanship. He had contact with Porter and yet he made no effort to subpoena Porter to testify at tral, and offers no explanation for his failure to do so. It is apparent that Spinosa sought the dual benefit of avoiding Porter's poten- tially harmful testimony at trial, while at the same time obtaining the advantage of a negative inference drawn by the jury about the government's failure to produce Porter as a witness. While this may make for clever trial tacties, the trial court was un- der no obligation to grant the motion for a “missing witness” instruction, As the Sec cond Cireuit has pointed out, “courts have been reluctant to find a witness practically unavailable when it appears that the de- fense has no real interest in calling the witness to the stand, but merely is engaged in a form of gamesmanship in an effort to obtain a missing witness charge.” United States »%. Torres, 845 F.2d 1165, 1170 (2d Cir.1988) (citing United States v. Bramble, 680 F.2d 590, 592 (9th Cir), cert. denied, 459 U.S, 1072, 108 S.Ct. 498, 74 L.Bd.2d 635, (1982), We agree, and hold that the trial 11, Of course, we do not old that such evidence, by itself, would have warranted granting Spino: sas motion. A witness is not “peculiarly aval ble" to the government simply because the 633 Ci. 199) court did not err in denying Spinosa’s mo- tion for a “missing witness” instruction. Affirmed, SOCIETE DES PRODUITS NESTLE, S.A. et al., Plaintiffs, Appellants, CASA HELVETIA, INC, et al., Defendants, Appellees. No. 92-1082, United States Court of Appeals, First Circuit. Heard Sept. 16, 1992. Decided Dee. 29, 1992 Holder of registered trademark for chocolates brought suit under Lanham ‘TradeMark Act, alleging infringement of its registered trademark and its distribu- tor's right of distributorship. The United States District Court for the Distriet of Puerto Rico, Carmen Consuelo Cerezo, J, 71. FSupp. 161, denied injunction, and trademark holder appealed. ‘The Court of Appeals, Selya, Cireuit Judge, held that difference hetween product authorized for domestic marketing and allegedly infring- ing product was sufficiently marked that domestic product warranted protection. Reversed and remanded. 1. Trade Regulation 95 ‘Territorial protections of Lanham Act engage where two merchants sell physical» ly different products in same market and under same name. Lanham Trade-Mark ‘Act, § 32, as amended, 15 US.C.A. § 1114 witness chooses not to discuss the cate with the Aefense. United States » Rollins, 882 F.2d 1282 1298 (ih Cir 1988), cert, denied. 60 US. 1078 109 S.Ct, 2084, 104 LEA 2d 698 (1989)634 2, Trade Regulation 368 Chocolates manufactured by plaintiff's Venezuelan distributor and imported by de- fendant to Puerto Rico and distributed un: der plaintiff's mark were not “genuine and their sale violated plaintiff's trademark and its Venezuelan distributor's right of exclusive distribution under Lanham Act, where Venezuelan chocolates were not au thorized for sale in United States and dif fered materially from authorized Italian- made version, Lanham Trade-Mark Act, §§ 82a), 42, 43(aX1), as amended, 15 US.GA. §§ 1114(1Ma), 1124, 1125(@)0). ‘See publication Words and Phrases for other judicial constructions and definitions 3, Trade Regulation 112 Mere licensing of product abroad does not support inference of consent to import Jicensed products into United States. 4, Customs Duties 22 Importation of gray good identieal to rood authorized for sale in the domestic market does not violate Lanham Act. Lan: hham Trade-Mark Act, § 42, as amended, 15 USCA. § 1124. 5. Trade Regulation 870.1 Lanham Act's prohibition agains false designation of origin encompasses. more than deceptions as to geographie origin; it extends, as well, to origin of source, spon Sorship or affiliation, Lanham Trade-Mark ‘Act, § 48a, (as amended, 15 USCA, § 112540, 6. Trade Regulation 6335, 403 Sections of Lanham Act governing trademark infringement and unfair compe tition do not require showing of actual con fusion; showing that likelihood of confu: sion is in prospect is sufficient. Lanham ‘TradeMark Act, §§ 32(1Ma), 42, 43(a), as amended, 15 USCA. §§ 1114(1Xa), 1124, 1125. 17. Trade Regulation 571 Material difference between goods si ‘multaneously sold in same market under same name creates presumption of consum- er confusion in gray goods ease. Lanham ‘Trade-Mark Act, §§ 320Ma), 42, 48(a), as 982 FEDERAL REPORTER, 24 SERIES amended, 15 USCA. §§ 1114(1Na), 1124, 11254. 8. Trade Regulation ¢582 Lanham Act does not require proof of actual harm to plaintiff's good will to sup- port finding of trademark infringement; ir- reparable harm flows from an unlawful trademark infringement as a matter of law. Lanham TradeMark Act, §§ 82(1Ma), 42, 49a), as amended, | 15 US.CA. 9§ 111401ya), 1124, 11254. 9, Trade Regulation 332 Showing that alleged infringing’ prod: uct suffers in quality is not necessary to prove Lanham Act violation. Lanham ‘Trade-Mark Act, §§ 32(1Ma), 42, 49(a), as amended, 15 US.CA. §§ 1114(1Ma), 1124 1125(a. 10, Trade Regulation 571 Existence of any difference between trademark registrant's product and alleged: ly infringing gray good that consumers ‘would likely consider to be relevant when purchasing @ product creates presumption of eonsumer confusion sufficient to support Lanham Act claim; to rebut this presump- tion, alleged infringer must prove by pre- ponderance of evidenee that differences are not of a kind that consumers, on the aver age, would likely consider in purehasing the product. Lanham ‘Trade-Mark Act, §§ 82(1Na), 42, 43(a), as amended, 15 US.CA. §§ 11140Xa), 1124, 112512), 11, Federal Courts €=776 Fashioning appropriate legal standard presents pure question of law, subject to de novo review. David W. Plant, with whom Vincent N. Palladino and Fish & Neave were on brief, for plaintiffs, appellants. Wilma B. Reveron Collazo, for defen- dants, appellees. Before SELYA, Circuit Judge, CAMPBELL, Senior Cireuit Judge, and BOUDIN, Circuit Judge.SOCIETE DES PRODUITS NESTLE v. CASA HELVETIA 635 ‘hear 942 F.2d 635 (at ch. 1992) SELYA, Cireuit Judge ‘This bittersweet appeal requires us to address the protection that trademark law affords a registrant against the imports tion and sale of so-called “gray goods,” that is, trademarked goods manufactured abroad under a valid license but brought into this country in derogation of arrange- ments lawfully made by the trademark holder to ensure territorial exclusivity. As we explain below, the scope of protection turns on the degree of difference between the product authorized for the domestic ‘market and the allegedly infringing prod ut, In the ease before us, the difference is sufficiently marked that the domestic product warrants protection. 1. BACKGROUND PERUGINA chocolates originated in It aly and continue to be manufactured there. ‘They are sold throughout the world and cater to a sophisticated consumer, a refined palate, and an indulgent budget. Societe Des Produits Nestle, S.A. (Nestle S.P.N.) ‘owns the PERUGINA trademark? For many years, defendant-appellee Casa Helvetia, Ine. was the authorized distribu- tor of PERUGINA chocolates in Puerto Rico. On November 28, 1988, however, Nestle S.P.N. forsook Casa Helvetia and licensed its affiliate, Nestle Puerto Rico, Inc. (Nestle P.R), a8 the exclusive Puerto Rican distributor. [At this point, the plot thickened, Nestle SPN, had previously licensed an indepen: dent company, Distribuidora Nacional de ‘Alimentos La’ Universal S.A. (Alimentos), 1. We use the term “domestic product” to de- scribe a product that the registrant has autho- ized for sale in the domestic market and 10 ‘heh the registrant has lawully accorded teri torial exclusvity. “We note, however, that the “domestic product” may, as in this case, be manufactured abroad, 2. The PERUGINA trademark includes. four marks registered in the United States and Puc {o Rico: PERUGINA, PERUGINA with design, PERUGINA and BACI with design, and BACT swith design. We subsequently use the name SPERUGINA” to refer to any one or more of the four, singly or in combination. 3. Under the licensing. agreement, Alimentos ‘may not sell or distribute the Veneauelan prod: to manufacture and sell chocolates bearing the PERUGINA mark in Venezuela? The Venezuelan sweets differ from the Italian sweets in presentation, variety, composi: tion, and price. In March 1980, without obtaining Nestle S.P.N’s consent, Casa Helvetia began to purchase the Venezue- Jan-made chocolates through middleman import them into Puerto Rico, and distri tute them under the PERUGINA mark. ‘This maneuver drew a swift response. Charging that Casa Helvetia’s marketing of the Venezuelan candies infringed both Nestle S.P.N’s registered trademark and Nestle P.R's right of exclusive distributor ship, Nestle S.P.N, and Nestle P.R, (herein: after collectively “Nestle") sued under the Lanham Trade-Mark Act of 1946, codified a3 amended, 15 US.C. §§ 1051-1072, 1091-1096, 1111-1121, 1123-1127 (1988). ‘They claimed that Casa Helvetia’s use of the PERUGINA label was “likely to con fuse consumers into the mistaken belief that the Venezuelan chocolates are the same as the Italian chocolates and are au- thorized by Nestle for sale in Puerto Rico. ‘And, they asserted that, because the PE- RUGINA name in Puerto Rieo is associated with Ttalian-made chocolates, the imporia- tion of materially different Venezuelan ‘chocolates threatened to erode “the integr: ty of the PERUGINA trademarks as sym- bols of consistent quality and goodwill in Puerto Rico. ‘The distriet court consolidated the hear- ing on preliminary injunction with the hear- ing on the merits, see Fed R.Giv.P. 65(a)2), and, after taking testimony, ruled in the uct in the United States without written authori ation from Nesle SPN. Moreover the licens. ing agreement states that Alimentos “cannot ex port ihe products under the ‘trademarks’ to [countries outside Venezuela}, ether directly oF fndivecty” except via Nestle SPN. Insofar a5 the record feveals, the leensing agreement re mains in effect 4A. Nestl’'s suit originally named three officers of ‘casa Helvetia s codefendants. One corporate Gficer, Helen Bette, remains in the ease as a Gefendant and appeice. For exe in reference we proceed as 17 Casa Helvetia were the sole party in interest