## Facts

- KIS and Foto Fantasy operated photo booths in shopping malls across the United States.
- The booths allowed customers either to take a new photo in the booth or insert an existing photo, which the machine would convert into a sketch.
- Foto Fantasy displayed sketches resembling Marilyn Monroe and Tom Cruise on the outside of its “Portrait Studios” booths, along with the phrase “SCAN IN YOUR FAVORITE CELEBRITIES.”
- KIS sued under the Lanham Act, alleging the celebrity imagery and messaging could mislead consumers into believing the celebrities were affiliated with, connected to, or endorsing Foto Fantasy’s booths, diverting business from KIS.
- To measure actual confusion and the impact of the celebrity display, KIS retained Dr. Daniel J. Howard to conduct a consumer survey.
- Dr. Howard surveyed 224 mall consumers at a mall location and used a photograph of Foto Fantasy’s booth in the survey rather than placing respondents in front of an actual booth.
- Dr. Howard reported a 49.2% confusion rate and also opined that the celebrity images would attract attention and make consumers more likely to choose Foto Fantasy’s booth.
- Foto Fantasy moved to strike Dr. Howard’s report and exclude his testimony, arguing the survey was unreliable because (1) the respondents did not match Foto Fantasy’s actual customer base, (2) the questions were leading and created a “demand effect,” and (3) the survey did not reflect real purchasing conditions because respondents saw only a picture of the booth.

## Issues

1. Whether Dr. Howard’s survey and opinions satisfied Federal Rule of Evidence 702 and Daubert so they could be admitted as evidence of actual confusion in a Lanham Act false association/endorsement dispute.
2. Whether the alleged flaws in the survey (respondent universe, claimed leading questions and “demand effect,” and the use of a booth photograph instead of real-world conditions) required exclusion or instead were matters for cross-examination and competing proof.

## Decision

- The court denied Foto Fantasy’s motion to strike Dr. Howard’s report and to exclude his testimony.
- The court ruled that the survey was sufficiently reliable for admission under Rule 702 and Daubert.
- The court held that the asserted shortcomings largely went to the weight of the evidence, not admissibility, and could be tested through cross-examination and opposing evidence at trial.

## Legal Principles

- Under Rule 702 and Daubert, survey evidence may be admitted when it uses methods commonly used in consumer research and is tied to a fact of consequence, such as actual confusion in a Lanham Act case.
- Disputes about whether a survey’s respondent pool perfectly matches the “right” consumer group typically affect the weight a factfinder should give the survey, not whether the survey must be excluded.
- Claims that survey questions are suggestive do not automatically require exclusion where the overall design (including use of a control group and a subtraction method to account for background “noise”) provides a reasonable check against bias.
- A confusion survey need not mirror marketplace conditions in every detail; a reasonable approximation—such as showing a realistic image of the challenged display with instructions that place respondents in a shopping context—can be sufficient for admissibility.
- Once a survey clears the reliability threshold, remaining methodological disputes are ordinarily handled through cross-examination, argument, and competing surveys or testimony.

## Conclusion

In this evidentiary order, the Northern District of Texas allowed KIS to present Dr. Howard’s mall-intercept confusion survey in its Lanham Act dispute with Foto Fantasy, holding that alleged defects involving the respondent universe, question wording, and use of a booth photograph were matters for the factfinder in weighing the evidence rather than reasons to exclude the survey under Rule 702 and Daubert.


KIS v. Foto Fantasy, 204 F. Supp. 2d 968 (2001)