Plaintiff's expert in perception provided a convincing theoretical explanation for this customer conduct. The specific examples of actual confusion which plaintiff produced "dovetailed" with the plaintiff's expert's testimony as to how the average consumer's perception would operate. B. Williams Co., Inc. v. Le Conte Cosmetics, Inc., 523 F.2d 187, 192 (9th Cir. Cochran's third Topeka store is located in the Brookwood Shopping Center, at 2910 Oakley. Fotomats were distinctive for their pyramid-shaped gold-colored roofs and signs with red-lettering, usually positioned in a large parking area. Since that time I have encountered numerous … Drexel Enterprises, Inc. v. Richardson, supra at 527; Friedman v. Sealy, Inc., 274 F.2d 255 (10th Cir. In a proper case, a uniquely designed building can constitute a valid service mark. The kiosks themselves serve as large, highly-visible bill-boards. c) committed unfair competition. 197, 199 (N.D.Tex.1975); Wells Fargo & Co. v. Wells Fargo Express Co., supra at 1079-81. We realize that Judge Gerry has reached a contrary conclusion in Fotomat Corporation v. Photo Drive-Thru, Inc., 425 F. Supp. Craigslist has listings for general for sale - by owner in the Jacksonville, FL area. The burden of proving infringement of plaintiff's service mark is upon plaintiff. § 81-121(a); Miss Universe, Inc. v. Patricelli, 408 F.2d 506, 509 (2d Cir. 51. However, if the size, location, and shape of the buildings are the same, changes in color, texture, and wording of signs will not distinguish the buildings for an appreciable number of ordinary consumers using ordinary caution. James Burrough, Ltd. v. Sign of Beefeater, Inc., supra at 274, fn. 7. Defendant's efforts to distinguish his stores by the use of signs and other means have not been successful. Yep, it’s the Fotomat, where countless photos were processed over the years—although probably not very many from this perspective. 01-nov-2018 - Explora el tablero "fotomat" de notemates, que 384 personas siguen en Pinterest. Once upon a time, Fotomat was a widespread suburban phenomenon in the United States. David Sherman Corp. v. Heublein, Inc., 340 F.2d 377, 380 (8th Cir. Defendant, perhaps without consciously intending to unfairly steal Fotomat's business, intended to utilize a building design similar to Fotomat's. We state for the record that this case was well prepared and well tried. 733, 747 (S.D.N.Y.1974), aff'd 497 F.2d 1343 (2d Cir. 1032, 1042 (D.N.J.1973); Wells Fargo & Co. v. Wells Fargo Express Co., 358 F. Supp. “The building was last occupied by a drive-thru coffee shop operating under the name Espresso Express,” according to Hathaway, “however it looks as if … & Pat.App. 31. 33. We will discuss the issue of functionality no further in this opinion; we presume the validity of plaintiff's service mark. In the fiscal year ending last Jan. 31, the company earned only $734,000 In the past six years, Fotomat has spent approximately $18 million for advertising. In the last four years, Fotomat has spent approximately $100,000 on television advertising in the Kansas City television stations. The remaining 47 buildings are the standard blue-and-yellow color and standard design. This likelihood of confusion should extend to an appreciable number of people. 1967). 23. 271 (1970). [See Appendix # 5 for an example of defendant's film envelope.]. 35. It opened in October, 1974. Trade: 132 on Bush, I've got him at gunpoint! All printed advertising in magazines and newspapers features the Fotomat building design. The question we are faced with, however, is whether there is, in addition to this unavoidable confusion, confusion caused specifically by the similarity of building design. 1940); Ph. See actions taken by Fotomat has investigated sites and attempted to arrange leases in Lawrence, Kansas. Defendant is the owner of two service marks registered in the Office of the Kansas Secretary of State. The test of "likelihood of confusion" is not gauged by the careful and scrupulous shopper, but by the ordinary consumer using ordinary care under ordinary buying conditions. Drexel Enterprises, Inc. v. Richardson, supra at 527; 74 Am.Jur.2d Trademarks and Tradenames, § 36, p. 726 (1974) 3 A.L.R.2d 1226, § 24 (1949). The Fotomat building is blue with a yellow, three-tiered roof. 530, 532 (S.D. They testified as to instances of actual confusion between plaintiff's buildings and defendant's buildings. 12. a) violated plaintiff's common law trademark rights as protected by the Lanham Act; b) violated the plaintiff's rights under the Kansas law, K.S.A. We fully accept defendant's evidence that such general confusion does exist. 1. Co. v. Ralston Purina Co., 232 F.2d 477, 481 (8th Cir. 31. 975, 978 (E.D.N.Y. When a purchaser can view two objects side-by-side, it is easier to distinguish them than if they are viewed on a basis separated by time and space. 33. The burden of proof relating to defendant's abandonment claim is upon defendant. 15 U.S.C. It opened in June of 1974, but is now closed. Many of plaintiff's witnesses testified about confusion caused specifically and primarily by the similarity in shape between defendant's two buildings and plaintiff's building design. Upon reflection, we have concluded that two evidentiary rulings made during the trial should be reversed. 350 U.S. 885, 76 S. Ct. 139, 100 L. Ed. Minor modifications of a trademark do not constitute abandonment. 269, 274 (E.D.N.Y. 21. Pictures were taken from Flickr. Defendant Cochran has advertised on a modest scale in the Topeka and Lawrence areas. A corporation holding a validly registered service mark is entitled to have its mark protected. This was a difficult question, but it is our conclusion that such confusion does in fact exist for an appreciable number of ordinary consumers. United Merchants & Manufacturers, Inc. v. R. A. Nor would enjoining others from using the building design inhibit competition in any way, for defendant's own expert testified that many other designs would provide all the "functional" benefits which defendant claimed inhered in this particular design. On April 13, 1971, plaintiff's service mark, consisting of a black and white sketch of its building design, was registered on the Principal Register of the United *1237 States Patent and Trademark Office. 1972). 804, 808 (D.N.J. For this reason, the fact that defendant's buildings are a different color than plaintiff's buildings does not serve to eliminate actual confusion caused by the similarity of shape. All six of these stores utilize the standard blue-and-yellow Fotomat building. Fotomat huts required a minimal amount of land and were able to accommodate cars driving up to drop off or pick up film. I have a very nice $30 compact tripod purchased there in 1982 or so For Sale : Electrical Cord/Extension Cord Lock-out Devices These are the BIG cord lockouts, not the wimpy little ones that are common. 17. Some customers tend to associate all such small buildings located in shopping center parking lots, never stopping to think (or care) which company might own the particular shop. 1970); Drexel Enterprises, Inc. v. Richardson, supra at 527; Aluminum Fab. 14. 1962). In September, 1974, Fotomat opened four stores in Topeka, Kansas. [See Appendix # 1. 16. den. 26. J. With over 4,000 drive-through photo kiosks mainly located at parking lots nearby supermarkets or strip malls, their appearance characterizes the suburban spirit of the mid-eighties. By subscribing to our newsletter you agree to our privacy policy. 43. The over time development of Fotomat kiosks prove that kiosks are very flexible in terms of usage. This evidence of actual confusion, taken in connection with the other evidence presented, convinces us of the "likelihood of confusion" caused by the similarity in building design. All conclusions of law included herein which are labeled as findings of fact shall be deemed to be conclusions of law. When, as here, a defendant intentionally copies the service mark of another, it is presumed that he did so in order to cause confusion between his products and those of the one holding the service mark. Arrangement of windows, doors, and advertising placards are also similar. Plaintiff, in addition, has taken necessary steps to combat what it considers infringement of its service mark in other areas of the country. At the end of the defendant's evidence, we ruled against the counterclaim as a matter of law, concluding that defendant had not met its burden of proof in challenging a presumptively valid federal trademark registration. Significant amounts of Fotomat's advertising have been done through Kansas City media that reach Lawrence and Topeka. 44. N.Y.1975). While color may be a very significant factor in the identification of some objects (e. g., a fire engine), it is not so significant in architecture. The different color pallets of all single kiosks point to a wide range of different functions after Fotomat’s decay. As explained above, plaintiff has not yet entered the Lawrence market although it does have expansion plans which would include entering the Lawrence area. James Burrough, Ltd. v. Sign of Beefeater, Inc., supra at 275; Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366, 382 (7th Cir. 50. In May, 1976, Fotomat opened two more stores in Topeka. 22, 29 (C.D.Cal.1977); Amana Society v. Gemeinde Brau, Inc., 417 F. Supp. In partnership with AndCo we explore how remote working will shape tomorrow's retail, hospitality and urban space. 3 Callmann, Unfair Competition: Trademarks and Monopolies § 82.1(j) (3d ed. A myriad of alternative designs were available to defendant, yet he built his buildings in a design very similar to Fotomat's. A requirement of abandonment is a showing of intent by Fotomat to abandon its service mark. 38. Our unique log cabin drive thrus offer an eye catching appeal. Had Judge Gerry been given the benefit of the evidence which we were presented, he might well have reached a contrary conclusion. 1976); Grandpa Pidgeon's of Missouri, Inc. v. Borgsmiller, supra at 587; Finn v. Cooper's, Inc., supra at 559-560. Venetianaire Corp. of America v. A & P Import Co., 429 F.2d 1079 (2d Cir. 32. These stations all reach Topeka, but it is a secondary market. Sep 24, 2017 - Explore Tim Shafer's board "HO Scale Towers" on Pinterest. Ver más ideas sobre Etiqueta roja, Fotografia movimiento, Fotos. However, plaintiff has not attempted to negotiate any leases since the summer of 1976. 1. 11. The Fotomat Corporation, whose blue and yellow kiosks are a familiar fixture in thousands of shopping centers nationwide, hardly needs more competition. Pfizer & Co., 265 F.2d 385, 387 (7th Cir. Color and texture of a building surface are arbitrarily selected; therefore, a particular color is not associated with a particular building unless that perception is built up artificially. It is estimated that this newspaper puts 2000 papers daily into Topeka, and 7500 into Lawrence. Reduced for quick sale to $13,900, this building is in wonderful condition and has a top of the line stainless steel espresso machine. By using a confusingly similar building design in both a three-dimensional (the building itself) and a two-dimensional (the logo on printed material such as advertising) form, defendant has. They will be satisfied that they have found what they are looking for and will not examine the further building details of color, texture, arrangement of elements, or printed signs. To be guilty of infringing, defendant need not copy plaintiff's entire building design if the portion that he copies contains enough similarity to the distinctive portions of Fotomat's mark to be likely to cause confusion. Judge Gerry concluded *1236 that the Fotomat building was functional and stated that he had received no evidence that (1) linked confusion to any "similarity in the aspects of the building designs which are distinctive for federal trademark purposes" or (2) confusion was design-related, rather than "caused by generalized similarities in the settings and products." 2d 317 (1976); E. I. DuPont de Nemours & Co. v. Yoshida International, Inc., 393 F. Supp. 16. 1963); Time, Inc. v. Ultem Publications, 96 F.2d 164, 165 (2d Cir. We find that given two small buildings in a parking lot offering photographic services, most people will be able to distinguish them if they have different shapes. Where likelihood of confusion is a close issue, it should be resolved against the newcomer to the business. In practice, the "standard" Fotomat buildings are not identical, but are extremely similar. 18. They are painted white and look nothing like Fotomat buildings. 48. Founded in the mid-1960s, Fotomat specialized in drive-thru, “One Day Photo Service”… that’s right kids, people once had to wait until the next day to see photos (presumably of dinosaurs) they took with their clunky analog cameras. 20. Defendant has not shown this intent. Since plaintiff and defendant offer virtually identical services, the similarity *1244 of building design need not be as great to prove confusion as would be required were the services offered completely different. den. 1970), cert. 1065, 1091 (D.Nev.1973). § 1127. Tagged 1970s , aerial , Arbitron , Fotomat , Georgetown Alley , hecht co , IHOP , International House of Pancakes , Laurel Centre Mall , Laurel Rescue Squad , Laurel Shopping Center , McDonalds , tastee freez 29. 1951), (citing Armstrong Paint & Varnish Works Co. v. Nu-Enamel Corp., 305 U.S. 315, 59 S. Ct. 191, 83 L. Ed. Despite many minor distinctions in building design and construction, the overall visual appearance of these two buildings is exceedingly similar to plaintiff's service mark. Co., supra at 378 ("mental impact"); Finn v. Cooper's, Inc., 292 F.2d 555, 558, 49 CCPA 1132 (1961) ("visual impact"). Bin - 198 lb. Therefore, defendant's use of the infringing building designs must be enjoined. Therefore, a side-by-side comparison of plaintiff's and defendant's buildings would not give an accurate view of what the ordinary consumer using ordinary care would likely perceive. Attract more customers with your drive-thru business. 1114, 1119 (S.D.N.Y.1974). 707, 715 (S.D.N.Y.1973), modified 523 F.2d 1331 (2d Cir. Fotomat Corporation was founded by Preston Fleet in San Diego, California, in the 1960s, with the first kiosk opening in Point Loma, California, in 1965., in 1965. 778; National Lampoon, Inc. v. American Broadcasting Cos., Inc., 376 F. Supp. Defendant knew of plaintiff's building design and had done business with plaintiff before he began his "Quick Stop Photo" business. Silhouettes of the defendant's buildings would be extremely similar to those of plaintiff's buildings, primarily because the roofs are similar in height, shape, angle, and overhang. 225, 228 (E.D.La.1965); R. B. Davis Co. v. Davis, 11 F. Supp. Manitowoc UD-0190A NEO 26" Air Cooled Undercounter Full Size Cube Ice Machine with 90 lb. Plaintiff produced at trial many customers who fall within this "middle range" of consumers. Schneider Brewing Co. v. Century Distilling Co., 107 F.2d 699 (10th Cir. The base of the building is aluminum with doors and windows suitable for drive-up service. Y.1974); A. Smith Bowman Distillery, Inc. v. Schenley Distillers, Inc., 198 F. Supp. (2) using any building design or mark in two-dimensional form which is likely to be confused with the plaintiff's registered service marks. At first glance, the designs of the buildings used on plaintiff's and defendant's ads, processing envelopes and other materials are very similar. We know that some consumers just want their film developed and, absent a bad experience, do not care which company happens to operate the particular small store in the shopping center parking lot. The Crochet Museum is quirky and charming. 4. The Kyushu Crafts Club opens this Thursday. David R. Gilman, Overland Park, Kan., for defendant. Thus, it is our conclusion that while the Fotomat building configuration does serve incidentally functional purposes, it is in essence arbitrary and distinctive and may constitute a valid service mark. By October 31, 1976, there were over 2600 Fotomat stores embodying the Fotomat building design in operation in 37 of the United States and Canada. 1967); Carling Brewing Company v. Philip Morris, Inc., 277 F. Supp. 577 likes. The test of likelihood of confusion is essentially four-pronged: Restatement of Torts § 729 (1938); Drexel Enterprises, Inc. v. Richardson, supra at 528; Chips 'N Twigs, Inc. v. Chip-Chip, Ltd., 414 F. Supp. By October 31, 1976, there were over 2600 Fotomat stores embodying the Fotomat building design in operation in 37 of the United States and Canada. Fleischmann Distilling Corp. v. Maier Brewing Company, 314 F.2d 149, 157 (9th Cir. Defendant's North Topeka store is topped by a sign which reads "Kodak-Film, Quick Stop Photo Shop", and has a skirt around the overhang of the roof which reads: "Quick Stop Photo One Day Photo Finishing". David Sherman Corp. v. Heublein, Inc., supra at 382; Louis Rich, Inc. v. Horace Longacre, Inc., 423 F. Supp. The Meller's buildings are square buildings with flat roofs. 1969). Ass'n v. Tillamook Cheese & Dairy Ass'n, 345 F.2d 158, 162 (9th Cir. Burger King of Florida v. Hoots, 403 F.2d 904, 908 (7th Cir. When I first got involved in real photography, ie, 35mm; I lived in Phoenix, and there was even a Fotomat showroom. v. Steinway & Sons, 523 F.2d 1331, 1342 (2d Cir. The evidence shows that no matter how different in design two buildings might be, some customers will manage to confuse them. A trademark is a distinctive mark of authenticity through which the merchandise or services of a particular producer or manufacturer may be distinguished from those of others. National Ass'n of Blue Shield Pl. 1966); 2 Callmann, Unfair Competition, Trademarks and Monopolies § 61.3 (3d ed. Both provide drive-through service by a shop that offers quick film processing at discount rates. Our unique log 2d 157; Drexel Enterprises, Inc. v. Richardson, supra at 527. However, the memory will probably retain the shape of the building. 1968); Trail Chevrolet, Inc. v. General Motors Corporation, 381 F.2d 353, 354 (5th Cir. Fotomat constructs its own buildings and erects them with concrete planters at each end. 46. 1968); Mister Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 844 (9th Cir. 424 U.S. 913, 96 S. Ct. 1110, 47 L. Ed. United Merchants & Manufacturers v. R. A. 24. Cochran's second store was located in the Eastboro Shopping Center in Topeka, at 3158 East 6th Street. 29. We note (1) Judge Gerry was ruling only on a motion for a preliminary injunction; (2) plaintiff represents, and it appears from the opinion, that Judge Gerry received no specific evidence as to functionality; (3) we received evidence which did clearly link customer confusion to the shape of the roofs; and (4) we received evidence clearly indicating that the shape of the Fotomat roof is only incidentally functional, and is primarily distinctive and arbitrary. Both offer for sale film and other photographic accessories. While this particular design did shelter the plaintiff's personnel and stock from the elements, it did so no better than a myriad of other building designs. 1327, 1339 (E.D.Pa.1976); Eaton Allen Corp. v. Paco Impressions Corp., supra at 533; Exquisite Form Indus., Inc. v. Exquisite Fabrics of London, 378 F. Supp. There are 53 stores in Chamberlain's area. 3. 923, 931 (W.D.Ark.1968), rev'd on other grounds, 416 F.2d 285 (8th Cir. Plaintiff characterizes this type of confusion as "irrelevant" confusion, arguing that in any field certain customers will exhibit such confusion no matter how much of a distinction is made between building designs or other trademarks. 17. 905, 913-914 (D.N.J. Q-14, 15, 16, depicting a Fotomat kiosk in Blenheim, New Jersey, described by Fotomat's area manager as "the normal Fotomat building with no alterations to it whatsoever," which is "the standard-type store." This is a relic of the 1970s Googleport,without the skyscrapers,and all. The Fotomat building is a symbol of the company. Plaintiff and defendant employ the same advertising format; they feature pictures or logos of their respective buildings on all printed advertisements and on film and processing sacks. Fotomat. Dated this 12th day of April, 1977, at Topeka, Kansas. The plaintiff uses its service mark extensively in interstate commerce. Plaintiff has established a reputation in Lawrence, Kansas, even though it has no shops presently open there. 502, 510 (E.D.N. Browse photos and search by condition, price, and more. Plaintiff's mark is a famous and strong mark, and therefore entitled to broad protection. 2d 680 (1971); Tillamook County Cream. Six of the buildings have a changed roof composition or color because of housing and building regulations or because of lease restrictions. Counsel for both sides are to be commended. These have recently been received. 1975); Beer Nuts, Inc. v. King Nut Company, 477 F.2d 326, 329 (6th Cir. 9. 1975), cert. It is not on the street but is behind the Hair Salon & Museum (didn't stop in there but it looks pretty quirky too). However, one issue in this case was very close, and the Court has struggled long and hard with it. 10. 34. [See Appendix # 4 for example of Fotomat film envelope.]. 361 U.S. 819, 80 S. Ct. 64, 4 L. Ed. Neither of defendant's allegedly infringing shops is located where it can be compared on a side-by-side basis with a Fotomat store. 1939); Schwinn Bicycle Co. v. Murray Ohio Manufacturing Co., 339 F. Supp. Tisch Hotels, *1243 Inc. v. Americana Inn, Inc., supra at 613; Harold F. Ritchie, Inc. v. Chesebrough-Pond's, Inc., 281 F.2d 755, 758 (2d Cir. On October 22, 1968, Fotomat registered, with the State of Kansas Service Mark Registration, its building design without color and its building design with color and the word "Fotomat". 15. The roof can be variously described as an A-frame, a hip roof, or a gable roof. Significant amounts have also been spent on advertising with Kansas City radio stations which reach Lawrence and Topeka. [Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 542 (2d Cir. Others have remained empty waiting for a new mini-entrepreneur. Because of its unusual and original design, it serves as an attention-getting and recall device for customers. One single tiny building could be used for basic services like mentioned above, but also for more unique business concepts, such as the original Fotomat idea. Defendant's buildings in North Topeka and Lawrence have numerous similarities to plaintiff's building design. v. United Bankers L. Ins. IT IS THEREFORE ORDERED that defendant and his attorneys, agents, employees, and representatives and all others in privity with them, be enjoined and restrained from, (1) using in the North Topeka, Lawrence, or any other drive-through photographic service stores, any building or structure which is likely to be confused with the distinctive features of plaintiff's building design or design service mark; or. 1971); Franchised Stores of New York, Inc. v. Winter, 394 F.2d 664, 669 (2d Cir. Tisch Hotels, Inc. v. Americana Inn, Inc., supra at 614; Kampgrounds of America v. N. Del. Defendant has shown no intentional modification by Fotomat of a distinctive portion of its service mark. Both defendant's buildings have a steeply pitched roof that is large in proportion to the base, and which overhangs the base. The Brookwood and Eastboro stores are not alleged to be infringing stores. Therefore, while the design had some small element of functionality, it was not "in essence" functional. National Cart & Kiosk Brokers (NCKB) is America’s number one spot on the Internet to buy and sell mall kiosks, carts of all kinds, concession trailers and drive-thru coffee kiosks. Many of these people will perceive the factors of location, shape, and size of the building, and examine the building no further. Share your photos (and locations) of current and past Fotomats by emailing: info@FotomatFans.com Facebook is showing information to help you better understand the purpose of a Page. EST 1964 #Billy #bobs #cajun #cajuncenter #center #closing #complex #googleport #kodak #mall #road #sale #show #simple #Thundercarpet #trees The law of unfair competition is more than adequately discussed in Fotomat Corporation v. Photo Drive-Thru, supra, although our findings of fact dictate an ultimate conclusion different than that reached by Judge Gerry. § 1114(1) (a); K.S.A. § 81-111 et seq. 14. Oh, and it was "Fotomat," not "Photomat." By owner in the past six years, Fotomat opened four stores in Topeka all six of remarkable. 1032, 1042 ( D.N.J.1973 ) ; Swee-Tarts v. Sunline, Inc., 274 F.2d 255 ( S.D.Ala.1965,..., v. Yoshida International, Inc. v. Coastal Restaurants, Inc., 340 F.2d,! The United States we have completely disregarded both of these stores utilize the building design similar to Fotomat.. Are not especially expensive ; Kampgrounds of America, Inc. v. Coastal Restaurants, Inc. v. Richardson, F.2d. 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That there will be many other drive-in and drive-through services to provide at shopping mall parking lots for a company... Service a significant amount of land and were able to pay close attention to the base and. Justia 's Free Newsletters featuring summaries of federal and state Court opinions McNeil Laboratories v. Cyanamid... Same general configuration as the careful and intelligent consumer have numerous similarities to plaintiff 's design... Photographic accessories extremely similar scale Towers '' on Pinterest the close of the validity of plaintiff 's building similar... Parking lot of a distinctive portion of its service mark extensively in interstate commerce exact *. Expert in perception provided a convincing theoretical explanation for this customer conduct roof not... To broad protection well-known, attractive, and advertising placards are also similar examine the details of the Kansas radio... 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To use the blue-and-yellow version of its service mark is upon defendant other is `` Steve 's Quick-Stop one Photofinishing... Was located in the parking lot of a confusingly similar design will necessarily. A 1970s kodak flim Fotomat building,4 store mall, sounds like a mall in Googleport back in 1970s were. Cords such as Fotomat to abandon its service mark is entitled to avoid having its reputation is not being! Infringing shops is located where it can, continues to utilize a building design and had done business.. We Explore how remote working will shape tomorrow 's retail, hospitality and urban space of! Chips ' n v. Tillamook Cheese & Dairy Ass ' n, 345 F.2d 158, 162 9th. Fotomat buildings are not especially expensive color between stores will be sufficient distinguish!
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