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TRI-STAR PICTURES, INC. v. UNGER

July 13, 1998

TRI-STAR PICTURES, INC., Plaintiff, against KURT UNGER, LEISURE TIME PRODUCTIONS, B.V., ACADEMY PICTURES, A.G., and DAVID N. BOTTOMS and HON. RAYA S. DREBEN as EXECUTORS of the ESTATE OF SAMUEL SPIEGEL, Defendants. LEISURE TIME PRODUCTIONS, B.V., Third-Party Plaintiff, -against- COLUMBIA PICTURES INDUSTRIES, INC., COLUMBIA PICTURES ENTERTAINMENT, INC. and HORIZON PICTURES, G.B., Third-Party Defendants.


The opinion of the court was delivered by: EDELSTEIN

OPINION & ORDER

 EDELSTEIN, District Judge :

 Plaintiffs Columbia Pictures Industries, Inc. ("Columbia") and Academy Pictures A.G. ("Academy")(collectively, "Plaintiffs") brought this action for trademark infringement, unfair competition, dilution and injury to business reputation pursuant to 15 U.S.C. § 1125, Section 360-1 of the New York General Business Law, New York Law and the common law against Defendants Leisure Time Productions, B.V. ("Leisure Time") and Kurt Unger ("Unger") (collectively, "Defendants"), in an attempt to permanently enjoin Leisure Time and Unger from releasing, distributing or advertising in the United States, their produced, but unreleased, motion picture entitled "Return from the River Kwai" ("Return") with that title or with any other title containing the words "River Kwai" or any other confusingly similar titles. The case was tried as a bench trial from July 14-16, 1997. Subsequent to the trial, both parties submitted Proposed Findings of Fact and Conclusions of Law and Post Trial Memoranda.

 Background

 "Bridge on the River Kwai" ("Bridge") was produced in 1956 by Sam Spiegel through two corporations he controlled, Horizon-American Pictures, Inc. ("Horizon-American") and Horizon Pictures Ltd. ("Horizon G.B."). Stipulated Fact ("Stip. Fact") 5.2.1. On April 18, 1956, Albatros Trust ("Albatros"), the predecessor of Plaintiff Academy, entered into an agreement with Horizon-American in which Albatros obtained a 25% royalty interest in revenues generated by the distribution of Bridge in the Western Hemisphere, excluding the United States and Canada. Stip. Fact 5.2.2. An April 25, 1956 distribution agreement gave a predecessor to Columbia *fn1" the rights to distribute the film in the Western Hemisphere. Stip. Fact 5.2.3. In addition, pursuant to the April 25, 1956 distribution agreement, Horizon-American agreed to obtain the copyrights in Bridge in the Western Hemisphere from Horizon G.B. and assign them to Columbia, while Columbia agreed to hold said copyrights in trust for the joint benefit of Columbia and Horizon-American. Stip. Fact 5.2.4; 5.2.5. Columbia distributed Bridge in the United States, releasing it in 1957 to critical and public acclaim. Stip. Fact 5.3.3. It won several Academy awards, and has since been viewed by millions of people in the United States and abroad. Stip. Fact 5.3.4.

 As per the April 25, 1956 agreement, Horizon Pictures, Inc. ("Horizon"), successor to Horizon-American, on January 5, 1959, assigned all right, title and interest of Bridge in the Western Hemisphere to Columbia subject to the already existing rights of Albatros created by the 1956 royalty agreement. Stip. 5.2.6. Subsequently, on February 5, 1959, Columbia entered into an agreement with Albatros to settle existing claims for overdue royalties. This agreement increased Albatros' royalty rates from 25% to 50% of the profits generated by Bridge, plus one half percent of the gross proceeds from the entire Western Hemisphere. Stip. 5.2.7. Albatros, for its part, agreed not to sue Columbia for claims relating to Bridge except for claims arising out of its rights under the agreement, including royalty payments. Stip. Fact 5.2.8.

 On April 28, 1960, Albatros entered into an agreement with a predecessor to Academy whereby Albatros assigned its rights to Western Hemisphere profits and proceeds to the predecessor of Academy for $ 590,000. Stip. Fact 5.2.9. Thus, both Columbia and Academy own interests in Bridge. Indeed, Columbia still regularly remits to Academy payment representing Academy's share of proceeds resulting from the distribution of Bridge in the Western Hemisphere. Stip. Fact 5.2.12.

 In early 1978, Defendant Unger became aware that Joan and Clay Blair, Jr. were writing a non-fiction book concerning some experiences of Allied prisoners of war held by the Japanese in the late stages of World War II. Stip. Fact 5.6.1. Specifically, the Blairs' book pertained to some of the Allied prisoners who were forced to build a Japanese railway through the jungles of Burma and Thailand, and were subsequently to be shipped to Japan to help alleviate a shortage of labor in Japan's mines and war production factories. Stip. Fact 5.6.2.

 Unger considered the Blairs' book a possible sequel to Bridge. Stip. Fact 5.6.3. Indeed, when Unger first approached the Blairs' agent, he asked if Sam Spiegel, whom Unger considered the "natural" person to produce a motion picture based on the Blairs' book, was interested in the rights to their book. Stip. Fact 5.6.4. Upon learning that Mr. Spiegel was not interested in the rights to the Blairs' book, Unger and his company Screenlife Establishment ("Screenlife"), on April 20, 1978, secured an option to purchase the motion picture and television rights to the Blairs' book, then, tentatively named, "Return from the River Kwai." Stip Fact 5.6.5. After completing the book, the Blairs, pursuant to an agreement dated July 24, 1978, assigned certain rights in the book to Screenlife. Stip. Fact 5.6.7. In a separate agreement dated the same day, Screenlife employed the Blairs to write a screenplay, based on their book, for a motion picture Screenlife planned to produce. Stip. Fact 5.6.7.

 In discussions about the initial screenplay for the motion picture Return, Unger and the Blairs contemplated a "story link" between the motion picture Bridge and the screenplay for Return. Stip. Fact 5.6.9; Trial Transcript ("Tr.") at 122-23. In fact, in the Blairs' first draft of the story line for Return, there were several links to Bridge that were not in the Blairs' book. Tr. at 123-24. For instance, the draft included using "The Colonel Bogey March," the tune the prisoners whistled in Bridge, on three separate occasions. Tr. at 124-25. Additionally, the beginning of the initial draft refers to the final scene from Bridge in that it had the prisoners hearing an explosion and shouting "they blew up the bridge! The bridge and the train!" Tr. at 125.

 At this time, Unger allegedly considered that Return would be a sequel to Bridge. Indeed, he intended to open Return with a film clip of the last few minutes from Bridge, *fn2" expecting that people would probably recognize the clip as being from Bridge. Tr. at 126-27.

 In May 1978, after acquiring the option to purchase the motion picture and television rights to the Blairs' book, and pursuant to a set of Motion Picture Association of America, Inc. ("MPAA") rules which requires its members to register the prospective titles of movies they plan to release, Leisure Time, using its trade name "The Film Pact," registered the title "Return from the River Kwai" with the Title Registration Bureau of the MPAA. Stip. Fact 5.7.1. Leisure Time's registration of the title Return was listed in the MPAA's daily Title Registration Report on May 9, 1978. *fn3" Id.

 Under the MPAA's rules, any member with a complaint of a registered title could file a protest within seven days of receiving notice of the registration. Stip. Fact 5.7.4. Columbia protested the registration of Return on the ground of harmful similarity to the title Bridge. Stip. Fact 5.7.5. However, the protest was not considered by the MPAA because it was received after the seven day time limit. Defendants allege that they spent over $ 500,000 in preproduction costs from 1978 to 1984, Tr. at 179-180, including approximately $ 10,000 advanced to them from Columbia. Stip. Fact 5.8.5.

 In late 1983 and early 1984, Unger entered into negotiations with Columbia to distribute Return outside the United States and Canada. Stip. Fact 5.8.1. During the course of these negotiations, Columbia stated that before entering into an agreement with Leisure Time to distribute Return, Unger first needed to obtain permission or a waiver from the producer of Bridge to use the title Return. Defendants' Exhibit ("Defs. Ex.") 108. Unger, by counsel, responded that Horizon's consent of his title was not required, as the words "River Kwai" denoted an actual geographical area and thus were available for use by anyone as long as the rest of the title did not make the two titles confusingly similar. Defs. Ex. 112. On March 20, 1985, Columbia terminated its negotiations with Leisure Time for acquiring the foreign distributions rights to Return. Defs. Ex. 122.

 On July 23, 1986, Tri-Star and Leisure Time entered into a distribution agreement whereby Leisure Time granted Tri-Star exclusive distribution rights for Return in the United States and Canada. Plaintiffs' Exhibit ("Pls. Ex.") 104; Stip. Fact 5.9.1. Pursuant to the distribution agreement, Leisure Time represented and warranted that it would provide Return for distribution free of any claims that "can or will impair or interfere with the rights of Tri-Star." Pls. Ex. 104; Stip. Fact 5.9.3. Additionally, the distribution agreement provided for the termination upon Leisure Time's breach of any warranty which materially affected Tri-Star's rights thereunder. Pls. Ex. 104; Stip. Fact 5.9.5. Further, Leisure Time represented and warranted that Return would not violate or infringe upon the Trademark of another party. Pls. Ex. 104; Stip. Fact 5.9.4.

 In July, 1987, Tri-Star registered the title Return with the Title registration Bureau of the MPAA. The registration was listed in the MPAA's Title Report dated July 2, 1987. Stip. Fact 5.7.8; Pls. Ex. 111. Thereafter, on July 13, 1987, Unger asked Tri-Star to withdraw its registration of Return. Pls. Ex. 112. However, before Tri-Star was able to do so, Columbia protested the registration. Pls. Ex. 111. Its protest was reported in the MPAA Title Report dated July 14, 1987. Pls. Ex. 111. The Title Report stated that the title Return "will not be clear for the registrant's use, under the provision of the Title Memorandum, until such time as the protest has been resolved . . ." Pls. Ex. 111; Tr. at 241. The protest was never resolved.

 Nevertheless, Columbia persisted with its objections to the use of the title Return. By letters dated June 15, 1987, August 10, 1987 and August 11, 1987, Columbia informed Unger that use of the title Return infringed on Columbia's and Horizon's right in Bridge and potentially violated trademark and unfair competition statutes. Stip. Facts 5.9.7; 5.9.8; 5.9.9. Columbia insisted that Unger cease and desist from any further use of the name Return, and threatened that continued use of the title would be to his peril. Thereafter, on December 17, 1987, Tri-Star and Columbia became affiliates and Columbia suspended asserting its claim against Return. Stip. Fact 5.9.10.

 Tri-Star, after learning that Return had begun shooting in February, 1988, and upon learning of the dispute between Unger and Columbia over the title Return in June 1988, requested that Leisure Time change the name of Return to avoid any potential liability. Stip. Fact 5.10.4. In the fall of 1988, Leisure Time offered to change Return's title to "March From the River Kwai" and to add a disclaimer disassociating the motion picture from Bridge. Defs. Exs. 176, 180; Stip. Fact 5.10.5. This offer, however, was rejected by Academy. Moreover, Academy, by letter dated November 17, 1988, advised Columbia that any use of the name "River Kwai" in a movie title would be met with a lawsuit to protect Academy's rights in the title, and that Columbia and Tri-Star would be joined as defendants in such a suit. Pls. Ex. 134; Stip. Fact 5.10.7.

 In light of Academy's threat to include Tri-Star and Columbia in the lawsuit to protect Academy's rights in Bridge, Tri-Star, by letter dated December 5, 1988, informed Leisure Time of Academy's trademark infringement claim. Pls. Ex. 135; Stip. Fact 5.10.10. Tri-Star stated that, because of Academy's claim, Tri-Star considered Leisure Time in breach of its warranty to deliver the movie free from claims against it and therefore considered itself free to terminate the Distribution Agreement if the breach was not cured within 10 days. Pls. Ex. 135; Stip. Fact 5.10.11. In response, Leisure Time threatened to sue for breach of contract if Tri-Star terminated the agreement. On December 27, 1988, this lawsuit as well as the companion contract action were commenced by Tri-Star.

 In an opinion dated October 15, 1990, this Court found that by adopting and retaining the title Return, Leisure Time had breached an express warranty in the Distribution Agreement that Return would not violate or infringe upon the trademark of another party. See Tri-Star v. Leisure Time, 749 F. Supp. 1243 (S.D.N.Y. 1990), aff'd, 17 F.3d 38 (2d Cir. 1994). This Court thus granted Tri-Star summary judgment, holding that, in light of Academy's assertion of trademark rights in the term "River Kwai," Tri-Star was entitled to terminate the Distribution Agreement. See id. This Court, however, denied Academy's motion for summary judgment against Leisure Time on the companion trademark infringement claim because disputed issues of material fact lingered as to the secondary meaning and the strength of the "River Kwai" mark and as to laches. See id.

 The trial as to the questions of material fact occurred in July, 1997. Plaintiffs alleged that the release, distribution or advertising of Return would infringe on their trademarks in the title Bridge and in the words "River Kwai" when used in the title of a motion picture. Specifically, Plaintiffs claimed that Leisure Time and Unger would be unjustly enriched if they are permitted to release its film with the current title because it will mislead the public into believing that Return is actually Bridge or is a remake or sequel to Bridge. They charge that Leisure Time wishes to release Return with its current title solely for the purpose of confusing the public as to the film's origin, i.e., by implying that it is a sequel to Bridge and/or was produced or sponsored by the producers of Bridge and is of the same high caliber as Bridge, in order to prolong the life and to increase the revenues of their film.

 In support of their claims, Plaintiffs argue that the motion picture title Bridge, and the term "River Kwai" (collectively the "marks") when used in the title of a motion picture have each acquired secondary meaning and thus are entitled to protection under the Lanham Act. Plaintiffs' Post-Trial Memorandum of Law "Pls. Brief") at 4. In addition, Plaintiffs claim that the title Return is likely to cause confusion among motion pictures viewers as to the source of the motion picture such that the release of Return with that title would infringe Plaintiffs' rights under the Lanham Act and under state statutory and common law. Id. at 13-14.

 Defendants contest Plaintiffs' claims by arguing that the term "River Kwai" is not entitled to trademark protection. Post Trial Memorandum of Defendants Kurt Unger and Leisure Time Productions, B.V. ("Defs. Brief") at 3. Additionally, Defendants contend that Plaintiffs' evidence does not establish a likelihood of confusion between Bridge and Return. Id. at 14. Moreover, Defendants argue that because Plaintiffs unreasonably delayed in asserting their infringement claim against Defendants, Plaintiffs' action is barred by laches. Id. at 26.

 Plaintiffs attempt to rebut Defendants' laches argument by stating that Defendants have not demonstrated that Plaintiffs improperly delayed in taking action against Defendants' plan to use the title Return. Pls. Brief at 29. In addition, Plaintiffs suggest that even if this Court finds that they did improperly delay in taking action, that Defendants have not proven that they were harmed or prejudiced by the delay. Id. at 26. Furthermore, Plaintiffs contend that Defendants' impermissible delay argument is no even available here because Defendants have deliberately attempted to infringe Plaintiffs' marks. Id. at 35.

 Discussion

 Section 43(a) of the Lanham Act prohibits any person from using "in connection with any goods . . . any word, term, name, symbol, or device, or any combination thereof . . . which . . . is likely to cause confusion, or to cause mistake, or to deceive . . . as to the origin, sponsorship, or approval of . . . his or her goods . . . by another person." 15 U.S.C. § 1125(a)(1). The purpose of § 43(a) is to prevent consumer confusion as to the source of a product and to enable those that produce a product to differentiate it from others on the market. Centaur Communications, Ltd. V. A/S/M Communications, Inc., 830 F.2d 1217, 1220 (2d Cir. 1987)(citations omitted); Mechanical Plastics Corp. V. Titan technologies, Inc., 823 F. Supp. 1137, 1143 (S.D.N.Y. 1993) aff'd 33 F.3d 50 (2d Cir. 1994).

 Section 43(a) has been "broadly construed to provide protection against deceptive marking, packaging, and advertising of goods and services in commerce." 20th Century Wear, Inc. V. Sanmark-Stardust, 747 F.2d 81, 91 (2d Cir. 1984), cert. denied, 470 U.S. 1052, 84 L. Ed. 2d 818, 105 S. Ct. 1755 (1985)(citing Keebler Co. V. Rovira Biscuit Corp., 624 F.2d 366, 372 (1st Cir. 1980). Indeed, even unregistered trademarks are protected under § 43(a). Paddington Corp. v. Attiki Importers & Distributers, Inc., 996 F.2d 577, 582 (2d Cir. 1993). This includes motion picture titles as they are sold in the commercial marketplace where the danger of consumer deception is a legitimate concern. See Rogers v. Grimaldi, 875 F.2d 994, 997-98 (2d Cir. 1989)(stating that it is well established that where a motion picture title has acquired secondary meaning it is entitled trademark protection under § 43(a) of the Lanham Act); Tri-Star Pictures, Inc. v. Leisure Time Products, B.V., 17 F.3d 38, 43 (2d Cir.), cert. denied, 513 U.S. 987, 130 L. Ed. 2d 396, 115 S. Ct. 484 (1994); Orion Pictures Co. Inc. v. Dell Publications Co. Inc., 471 F. Supp. 392, 395 (S.D.N.Y. 1979).

 In order to prevail on a trademark infringement claim, Plaintiffs must demonstrate that their marks are valid trademarks entitled to protection under the Lanham Act, and that Defendants' actions are likely to cause confusion with Plaintiffs' marks. See The Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d 955, 960 (2d Cir. 1996); Gruner Jahr USA Publishing v. Meredith Corp., 991 F.2d 1072, 1075 (2d Cir. 1993). This Court will begin with the first step of this two part analysis, whether Plaintiffs' marks merit protection.

 Secondary Meaning Analysis

 Generally, a mark receives trademark protection when it acquires secondary meaning. *fn4" See Gruner, 991 F.2d at 1076. Secondary meaning ordinarily attaches to a mark when "'the mark comes to identify not only the goods, but the source of those goods,'" Centaur Communications, 830 F.2d at 1221 (quoting 20th Century Wear, Inc. v. Sanmark-Stardust, 815 F.2d 8, 10 (2d Cir. 1987)), or when "the consuming public primarily associates the term with a particular source." Estee Lauder Inc. v. The Gap, Inc., 108 F.3d 1503, 1509 (2d Cir. 1997)(quoting Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1040 (2d Cir. 1992).

 Motion picture titles are no different. As this Court has previously stated, motion picture titles acquire secondary meaning when the title becomes so well known that consumers associate it with a particular author's work. Tri-Star, 749 F. Supp. at 1252. See Orion Pictures, 471 F. Supp. at 395 (stating that a motion picture title acquires secondary meaning where "through publicity and use, [the title] has come to be associated in the minds of a substantial number of people with a certain type of film produced by a particular individual"). Once a motion picture title acquires secondary meaning, the owner of the rights to that title, or mark, may prevent the use of the same or confusingly similar titles by others. Rogers, 875 F.2d at 998.

 Although secondary meaning analyses focus on the consuming public, every consumer need not make the required association. It is sufficient to demonstrate that a substantial segment of the relevant consumer group makes the requisite association. Centaur Communications, 830 F.2d at 1221-22; Coach Leatherware Co., Inc. v. Ann Taylor, Inc., 933 F.2d 162, 168 (2d Cir. 1991).

 In ascertaining whether a mark has obtained secondary meaning, a court should look to the following factors: (1) advertising expenditures; (2) consumer studies linking the mark to a source; (3) unsolicited media coverage of the product; (4) sales success; (5) attempts to plagiarize the mark and (6) length and exclusivity of the mark's use. Centaur Communication, 830 F.2d at 1222; Thompson Medical Co. v. Pfizer, Inc., 753 F.2d 208, 217 (2d Cir. 1985); see L. & J.G. Stickley, Inc. v. Canal Dover Furniture Co., Inc., 79 F.3d 258, 263 (2d Cir. 1996); Black & Decker Corporation v. Dunsford, 944 F. Supp. 220, 226 (S.D.N.Y. 1996). None of the above factors alone is dispositive in determining secondary meaning, nor is it necessary for a party to prove every element. Centaur Communication, 830 F.2d at 1222; Thompson Medical Co., 753 F.2d at 217; L. & J.G. Stickley, Inc., 79 F.3d at 263. Nevertheless, this Court shall consider each factor in turn in making its determination of whether Plaintiffs have established secondary meaning.

 First, extensive advertising expenditures and publicity by the holder of the mark are probative in assessing whether a mark has acquired secondary meaning. See Centaur Communications, 830 F.2d at 1222; Thompson Medical Co., 753 F.2d at 217; Harlequin Enterprises Ltd. v. Gulf & Western Corp., 644 F.2d 946, 949-50 (2d Cir. 1981). Here, the evidence sets forth that since 1977 Plaintiffs' pure advertising expenditures have only amounted to approximately $ 27,358. *fn5" See Pls. Exs. 170-196I. Plaintiffs recognize that this is a modest amount but contend that given the success and popularity of Bridge that substantial advertising expenditures would have been illogical. See Plaintiffs' Memorandum in Response to Post-Trial Memorandum of Defendants Kurt Unger and Leisure Time Productions, B.V. ("Plaintiffs' Response") at 18. Although this Court is intrigued by this argument, Plaintiffs cite no cases to support their notion that a purposeful lack of advertising satisfies the advertising expenditures inquiry, and this Court's research has found no such authority. Accordingly, this Court holds that Plaintiffs have not met their burden with regards to this element and thus cannot rely on this element to support their claim of secondary meaning. This, however, does not end the inquiry because, as stated, no one factor is dispositive in determining secondary meaning and every element need not be proved. Centaur Communication, 830 F.2d at 1222; Thompson Medical Co., 753 F.2d at 217; L. & J.G. Stickley, Inc., 79 F.3d at 263.

 Second, consumer studies linking the mark to the source can be indicative of secondary meaning. See Harlequin Enterprises Ltd., 644 F.2d at 950 n.2; Chinese Arts & Crafts Inc. v. Wedemeyer, 530 F. Supp. 375, 380 (S.D.N.Y. 1981). A consumer survey, conducted by Dr. Eugene Ericksen, concluded that the words "River Kwai," in connection with the title of a motion picture, have achieved secondary meaning among a large segment of the American movie-going public. See Pls. Ex. 232. Indeed, out of 200 people interviewed in Dr. Ericksen's telephone survey, 42% of all respondents had heard of or seen a motion picture with the words "River Kwai" in the title. Id. at 6. Seventy-four percent of those respondents identified that motion picture as Bridge. Id. Dr. Ericksen's mall survey of 100 people disclosed that 51% of all respondents had heard of or seen a motion picture with the words "River Kwai" in the title. Id., Table 8. Again, approximately 73% of those respondents gave a description of Bridge. Although these numbers are not conclusive evidence of secondary meaning, they are significant enough to be probative of secondary meaning. See Harlequin Enterprises Ltd., 644 F.2d at 950 n.2.

 Defendants claim that Dr. Ericksen's survey is flawed because it failed to identify the relevant universe or the intended market for Return because his survey excluded young adults aged thirteen through seventeen, an age group that Defendants contend Return would appeal. See Defs. Brief at 5-6. However, this argument is unavailing as Dr. Ericksen testified that had he included people aged thirteen to seventeen in his survey and had none of them been confused by the title Return, that would have had only a minor effect on the survey's results. See Tr. at 91-93.

 Defendants also suggest that Dr. Ericksen's survey is flawed because it posed leading questions to its respondents. See Defs. Brief at 6. The question posed by Dr. Ericksen was whether they had ever heard of any motion picture or motion pictures with the words "River Kwai" in the title. Defendants suggest that a better question would have been "with whom or what do you associate 'River Kwai.'" Id. Since Plaintiffs claim trademark protection in the title "The Bridge on the River Kwai" and in the words "River Kwai" when used in the title of a motion picture, this Court finds that Dr. Ericksen's question was appropriate. See L.E. Evans and D.M. Gunn, Trademark Surveys, 79 The Trademark Reporter 1, 16-17 (1989)(quoting V.N. Palladino, Techniques for Ascertaining if There is Secondary Meaning, 73 The Trademark Reporter 391, 397 (1983)("the appropriate question in [a secondary meaning] survey is 'Do you associate [claimed trademark] with [product identification] of one, or more than one, company?'"); American Footwear Corp. v. General Footwear Co., 609 F.2d 655, 661 n.4 (2d Cir. 1970). Defendants' suggested question might have been appropriate had Plaintiffs claimed a trademark in the phrase "River Kwai" for any purpose. Here, however, in the context of the narrower trademark claimed by Plaintiffs, Defendants' suggestion is off the mark.

 Defendants further object to Dr. Ericksen's survey because they argue that it was not conducted under actual marketing conditions. See Defs. Brief at 6. This argument is without merit. Dr. Ericksen conducted a telephone survey and a survey which directed respondents to look at cards with words printed on them. Both types are regularly used by professionals who conduct surveys. See American Footwear Corp., 609 F.2d at 660 n.4. Additionally, both surveys replicate the real world conditions in which a potential motion picture ...


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