Fun-Damental Too, Ltd. v. Gemmy Industries Corp.

111 F.3d 993 (2nd Cir. 1997)

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Nature of the Case

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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.