Industrial Design and Marketing Expert Witness Testimony Allowed

Plaintiff filed suit against the defendant on a claim of trade dress infringement related to a French press coffeemaker.  Plaintiff hired an industrial design expert witness and marketing expert witness to provide testimony on its behalf.  The defendant filed motions to exclude, which were denied by the court.

Facts:  This case (Bodum USA, Inc. v. A Top New Casting Inc. – United States District Court – Northern District of Illinois – December 28th, 2017) involves a claim of trade dress infringement.  The plaintiff (Bodum) sued the defendant (A Top) claiming that A Top’s French press coffeemaker is confusingly similar to Bodum’s in overall appearance.  In order to help prove their case, Bodum hired industrial design expert witness Robert Anders and marketing expert witness Rhonda Harper.  A Top subsequently filed a motion to exclude the testimony of these experts.

Discussion:  Robert Anders concluded in his report that the overall appearance or design of Bodum’s coffeemaker is entitled to trade dress protection.  In addition, he concluded that there is a significant likelihood of confusion between both versions of the coffeemaker’s trade dress based on their overall appearance.  Rhonda Harper created and analyzed a consumer survey to measure the likelihood of confusion of both coffeemakers.  She concluded that her survey shows a strong likelihood of confusion among consumers.

A Top argues that Anders’s testimony should be excluded for three reasons: 1) He evaluated a different trade dress than the one at issue in this case; 2) He excluded elements that he deemed functional from his functionality analysis; and 3) He did not apply the appropriate legal test for trade dress functionality.  The court opined that these arguments should be addressed at the cross-examination stage.  The court stated that Anders’s testimony on functionality meets the standard for assisting the trier of fact in this case.  In addition, the court opined that there is a rational connection between the data he used and the conclusions he provides.

A Top also argues that Harper’s consumer should be excluded because it was not typical of the marketplace, did not select the correct study universe, and used masking questions to minimize bias in sampling.  In addition, A Top argues that Harper improperly accounted for baseline confusion from the control data.  The court opined that Harper’s expert testimony meets the requirements of Daubert in that it will help the trier of fact evaluate the likelihood of confusion.  In addition, the expert testimony was based on sufficient data and is the product of reliable methodology.

Conclusion:  The motions to exclude the expert witness testimony of Robert Anders and Rhonda Harper are denied by the court.