Marketing Expert Witness Testimony Allowed in Trademark Infringement Litigation

Plaintiff filed suit against defendant based on a claim of trademark infringement.  Plaintiff hired a Marketing Expert Witness to provide testimony.  Defendant filed a motion to exclude this testimony.  The court denied the motion.

Facts:  This case (FCOA LLC v. FOREMOST TITLE & ESCROW SERVICES LLC – United States District Court – Southern District of Florida – January 30th, 2019) involves a claim for trademark infringement. The plaintiff argues that the defendant infringes on their trademark and would like them to remove the work “foremost” from their name.  The plaintiff has hired Marketing Expert Witness, Dr. Thomas Maronick to provide testimony on their behalf.  The defendant has filed a motion to exclude this expert from testifying.

Discussion:  The defendant argues that Dr. Maronick’s expert report is not reliable because it contains numerous methodological defects.  First, the defendant claims that Dr. Maronick used an improper universe for his survey.  The report from Dr. Maronick included individuals that purchased real estate during the past to years.  The defendant argues that Dr. Maronick did not ask whether those individuals intended to purchase real estate or title insurance in the future.  Second, the defendant argues that the sample size is not a representation of a target population because it is limited only to those individuals lifted from an Internet panel.

Also, the defendant states that the survey is not adequate because it does not simulate market conditions.  Last, the defendant argues that the survey includes improper questioning techniques and that its flawed design renders the survey results as unreliable.

The plaintiff’s response is that this a non-jury trial and that the gatekeeping purpose of Daubert is not implicated.  The plaintiff also states that the court should allow Dr. Maronick’s opinions and give it the weight it deserves when the case is decided on the merits.  In addition, the plaintiff states that any alleged flaws in the expert report go to the weight of the results and not the admissibility.

The court rules that the defendant’s motion is not persuasive as the general rule is that methodological flaws in a survey bear on the weight of the survey, not the admissibility.  The court opines that this is not a case where the wholesale exclusion of an expert report is justified based on the record presented and that any arguments on this issue go to the weight of the evidence not their admissibility.

Conclusion:  The motion to exclude the expert witness testimony of Dr. Thomas Maronick based on Daubert is denied.