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

United States Court of Appeals for the Second Circuit
111 F.3d 993 (2d Cir. 1997)


Fun-Damental Too, Ltd. (Fun-Damental) (plaintiff) manufactured the “Toilet Bank,” a novelty item that resembled a toilet, but was actually a type of piggy bank. Subsequently, Gemmy Industries Corp. (Gemmy) (defendant) began manufacturing a very similar toilet-shaped piggy bank, called the Currency Can, and was able to sell it to its retail customers at a lower wholesale price than Fun-Damental’s Toilet Bank. Gemmy’s retailers were in turn able to sell Gemmy’s Currency Can for about half as much as Fun-Damental’s retailers were able to sell the Toilet Bank. Fun-Damental brought suit for trade dress infringement. As part of the suit, in order to establish actual confusion, Fun-Damental sought to introduce testimony stating that some of their retail customers complained that they thought Fun-Damental was selling the Toilet Bank at a lower price to other retailers. The United States District Court for the Southern District of New York admitted this evidence. Gemmy appealed.

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