The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Plaintiff Design Ideas, Ltd.'s (Design Ideas) Motion in Limine to Exclude Defendant's Similarity Expert (d/e 26) (Motion). For the reasons set forth below, the Motion is ALLOWED.
Design Ideas alleges that it has secured a registered copyright for the decorations on its wire candle baskets. Each basket is designed to hold a small candle. The baskets are decorated with small wire form decorations that represent flowers. Design Ideas alleges that Defendant Things Remembered, Inc. (Things Remembered) is infringing on that copyright in its sale of a heart-shaped wire basket designed to hold approximately seven small candles. The exterior of the accused Things Remembered basket also has wire form decorations that represent flowers.
Things Remembered has disclosed in discovery the Expert Report of Patrick Brown. Motion, Exhibit B, Design Expert Report for Things Remembered, Inc., dated October 14, 2008 (Report). Brown is a graphic artist by training, and is a Project Director for a new-product design firm called Nottingham-Spirk Design Associates. Brown states in his Report that his testimony addresses, "similarities and dissimilarities between the wire form flower decorations" on the Design Ideas Baskets and the Things Remembered Basket. Report, at 1. Brown also states that his testimony will address, "the similarities and dissimilarities between the these (sic) wire form flower decorations and flowers appearing in nature." Id.
Brown states that both products use wire form decorations to depict daisies, pansies, and sunflowers. Brown's Report contains a separate section for each type of flower -- daisy, pansy, and sunflower. Each section consists of four parts. The first part sets forth Brown's opinions regarding the essential details that he believes distinguishes each flower in nature. For example, Brown opines regarding the pansy:
The Pansy in nature is typically composed of 5 large overlapping round petal elements arranged around a round center detail and in some instances radiating linear color detailing emanating from the center of the flower.
Report, at 4. The second part of the opinion is listed under the heading "Similarities." In this section, Brown opines on the common features of the parties' decorations and how those common features depict the particular flower under discussion. For example, Brown opines concerning the pansy decorations:
To ensure that the wire form abstractions of a Pansy is recognized as a Pansy, the detailing seen in the execution of both Design Ideas and Things Remembered makes use of large round petal shapes and a center detail. In addition, the Design Ideas Pansy and the Things Remembered Pansy design 3 both illustrate radial detailing from the center.
Id., at 5. The next portion of each opinion is entitled "Differences." In this portion of his opinions, Brown analyzes the differences in the shapes of petals or other parts of the decorations. For example, Brown opines that the pansy petals are different in the two company's designs:
A primary point of departure between the Pansy designs from the two sources involves the shape and profile of the large round petals. While there are six circular shaped petals seen on the Things Remembered Pansy, the Design Ideas Pansy is designed with five tear drop shaped petals.
Id., at 5. Brown then opines about differences in the center of each wire flower decoration. With respect to the pansy, Brown opines:
The center detailing seen in the Things Remembered Pansy is from a loose spiral winding as compared to the tight wire winding seen on the Design Ideas center. The tightly wound spiral wound wire detailing of the Design Ideas Pansy gives the appearance of a solid center form more representing a literal interpretation of a Pansy in nature than does the Things Remembered Pansy designs.
Brown then finishes his discussion of each flower with a section called "Conclusion." With respect to the pansy ...