Plaintiff sued defendant for alleged trademark infringement of their cleaning product. Both experts hired public opinion & survey research expert witnesses to assist in their cases and both parties filed motions to exclude these witnesses. The court denied the motion to exclude the plaintiff’s expert and partly granted the motion to exclude the defendant’s expert.
Facts: This case (The Hilsinger Company v. Kleen Concepts, LLC – United States District Court – District of Massachusetts – September 1st, 2017) involves an alleged trademark infringement. The plaintiff (Hilsinger) filed suit against the defendant (Kleen) alleging that the mark used by Kleen, “SHIELDME” (used in the sale and distribution of cleaning products), infringed on Hilsinger’s “SHIELD” brand. Kleen hired Brian M. Sowers and Hilsinger hired Dr. Melissa Pittaoulis, both Public Opinion & Survey Research Expert Witnesses, to provide testimony in this case. There are numerous motions before the court, including both parties motions to exclude expert witness testimony on the other side.
Discussion: Both parties argue that their opponent’s expert used a survey format that was unreliable under the circumstances of this case. Both of the experts utilized the Squirt survey to ascertain the likelihood that consumers would be confused. Also, both experts asked online respondents substantially the same questions related to their perceptions of how similar the products are and the association with the companies that produce the products. The difference in the two experts’ surveys was that Dr. Pittaoulis used an array version and Sowers used a sequential line-up version of the Squirt survey. Both parties allege that their opponent’s expert utilized the incorrect variant of the survey.
While the array version is more appropriate for conditions where the products are displayed side by side, the line-up format is more suitable when the products are close, but not literally side by side. The court opined that either party has been able to prove with convincing evidence that the products were lined up side by side or within close proximity in the stores. These types of challenges are best resolved by the trier of fact during trial, not at the admissibility stage. Thus, the part of the motions to exclude that address the version of the survey were denied.
Also denied was Hilsinger’s objection to Sowers’s method of imposing a five second delay between the display of each product. The court also opined that any arguments like this go to the weight of the evidence and not the admissibility.
Last, Hilsinger argues that Sowers’s open ended question regarding primary purchasing considerations should be excluded because it is not reliable. Sowers asked the respondents what their main consideration is when purchasing a lens cleaner, to which price was an overwhelming popular factor. Hilsinger argues that this methodology is not tested and not consistent with academic consensus. The court sided with Hilsinger on this point, stating that Kleen has not provided any evidence that these methods of determining primary purchasing consideration have been tested or subject to peer review. Since, it is Kleen’s burden to prove that these methods are reliable, the court excluded Sowers’s opinion on primary purchasing considerations.
Conclusion: The motion to exclude the expert opinion of Dr. Melissa Pittaoulis was denied and the motion to exclude the expert opinion of Brian M. Sowers was granted in part and denied in part.