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 (plaintiff) made a toilet-shaped piggy bank called the Toilet Bank; Gemmy Industries (defendant) began selling a strikingly similar product, the Currency Can, at a lower wholesale price that let Gemmy's retailers resell it for about half of what Fun-Damental's retailers charged for the Toilet Bank. Fun-Damental sued for trade dress infringement and, to prove actual confusion, sought to introduce testimony that its own retail customers had complained they believed Fun-Damental itself was selling the Toilet Bank more cheaply to other retailers, when in fact those retailers had actually seen the competing Currency Can sold cheaply. The district court admitted this testimony, and Gemmy appealed.
Whether evidence of retail customers' complaints about a product's low price is admissible to show that the customers could not distinguish that product from a competing product actually manufactured by the plaintiff.