Plaintiff filed suit against the defendant related to a trademark infringement claim. The plaintiff hired a Marketing Expert Witness to provide testimony. The defendant filed a motion to exclude this expert from testifying. The court denied the motion to exclude.
Facts: This case (Firebirds International, LLC v. Firebird Restaurant Group, LLC et al – United States District Court – Northern District of Texas – August 21st, 2019) involves of a claim of trademark infringement. The plaintiff owns and operates around fifty restaurant, all which have the mark FIREBIRDS®. The plaintiff plans on expanding into Texas. The defendant, a restaurant management company, owns and operates more than fifty restaurants under six brands. The plaintiff alleges that the defendant uses “Firebird” as its “mother brand.” The plaintiff filed a lawsuit against the plaintiff, alleging claims of trademark infringement. The plaintiff hired Robert Klein (Marketing Expert Witness) to provide testimony. The defendant has filed a motion to exclude this expert from testifying.
Discussion: The court notes that Klein was hired to conduct a survey to measure the likelihood of confusion between the plaintiff and the defendant caused by the defendant’s use of the mark ‘Firebird.’ The defendant argues that Klein’s opinions should be excluded for five reasons: 1) he asked the wrong questions of the wrong universe; 2) he did not accurately replicate market conditions; 3) he assumed that consumers were aware of FRG; 4) he improperly suggested an affiliation between the plaintiff and the defendant; and 5) he did not use a proper control.
First, the defendant argues that Klein did not select the correct universe of respondents because he surveyed potential customers of the defendant’s brand restaurants, instead of the defendant’s actual potential customers, which are other restaurants. The court opines that this argument is a question of fact and should be left for trial.
In addition, the defendant argues that Klein should have asked the respondents whether they believed that the defendant’s services belong to the plaintiff, instead of asking whether they think that the plaintiff is part of FRG. The court opines that the manner in which Klein asked questions to the survey respondents is not fatal to the survey’s admissibility.
Next, the defendant argues that Klein did not reasonably replicate the marketplace in which the plaintiff’s and defendant’s marks are encountered. The court opines that any imperfections of Klein’s survey do not rise to the level of flaws that would warrant exclusion.
Conclusion: The motion to exclude the expert witness testimony of Robert Klein is denied.