FUN-DAMENTAL TOO, LTD. V. GEMMY INDUSTRIES CORP.
111 F.3d 993 (2nd Cir. 1997)
NATURE OF THE CASE: This was a trade dress lawsuit under the Lanham Act.
FACTS: Fun-Damental (P) sued Gemmy (D) and Kay Bee Toy (D1) for trade dress infringement
under the Lanham Act in that D copied P's 'Toilet Bank' for use as D's 'Currency Can.' In
1992 P developed the Toilet Bank complete with flushing sound when its handle was depressed.
P began marketing its product in 1994. In May 1995, D1 expressed an interest in carrying the
Bank but decided not too as it was deemed to be too expensive. P got word of a similar
product at D1 in the name of the Currency Can that was developed by D when it got word of
P's product. D admitted that the Currency Can was designed with dimensions virtually
identical to those of the Toilet Bank. P offered direct testimony of its national sales
manager to demonstrate actual confusion; that customers were complaining because they
thought that P was selling its Toilet Bank at a lower price to other retailers. Ds argued
that this evidence was hearsay. The court allowed the evidence.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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