KIS v. Foto Fantasy
United States District Court for the Northern District of Texas
204 F. Supp. 2d 968 (2001)
- Written by Katrina Sumner, JD
Facts
KIS (plaintiff) and Foto Fantasy (defendant) both operated photo booths inside shopping malls across the United States. The photo booths allowed customers to have their pictures taken or to insert a picture, which the photo booth would turn into a sketch. Foto Fantasy placed sketches of two celebrities, Marilyn Monroe and Tom Cruise, on the outsides of their booths and invited the customers to scan their favorite celebrities. KIS filed suit, alleging that Foto Fantasy had violated KIS’s rights under the Lanham Act. KIS claimed that Foto Fantasy’s use of the celebrity sketches created confusion in violation of the Lanham Act because the sketches made it appear that the celebrities were associated with Foto Fantasy’s booths. KIS argued that this confusion would cause consumers to use Foto Fantasy’s photo booths more than its own booths. KIS sponsored a survey conducted by Dr. Daniel Howard to assess actual confusion caused by the placement of celebrities on the outside of Foto Fantasy’s booths. Dr. Howard conducted a survey of 224 consumers at a particular mall. Dr. Howard concluded from the results of the survey that there was a confusion rate of 49.2 percent. Dr. Howard assessed that the use of the photos of celebrities on the outside of Foto Fantasy’s booths would make Foto Fantasy more likely to gain customers’ attention and make customers more likely to buy from Foto Fantasy’s booths. Foto Fantasy moved to strike Dr. Howard’s report and testimony. Foto Fantasy objected to Dr. Howard’s results as unreliable on three grounds: (1) the survey participants did not mirror Foto Fantasy’s actual customers; (2) the survey used leading questions, yielding a demand effect; and (3) the methodology used did not capture actual market conditions, because the survey participants were not shown one of Foto Fantasy’s actual photo booths but rather a picture of one of its photo booths. The district court found that issues with the survey participants related to the weight of the evidence rather than to admissibility. The court found the survey did not use leading questions, or if it did, Dr. Howard counteracted any effect by subtracting a percentage of the control group. Finally, the court determined that Dr. Howard had successfully addressed the issue regarding market conditions through instructions to participants.
Rule of Law
Issue
Holding and Reasoning (Lynn, J.)
What to do next…
Here's why 832,000 law students have relied on our case briefs:
- Written by law professors and practitioners, not other law students. 46,400 briefs, keyed to 994 casebooks. Top-notch customer support.
- The right amount of information, includes the facts, issues, rule of law, holding and reasoning, and any concurrences and dissents.
- Access in your classes, works on your mobile and tablet. Massive library of related video lessons and high quality multiple-choice questions.
- Easy to use, uniform format for every case brief. Written in plain English, not in legalese. Our briefs summarize and simplify; they don’t just repeat the court’s language.
