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Bobak Sausage Co. v. A & J Seven Bridges

April 26, 2010

BOBAK SAUSAGE COMPANY PLAINTIFF,
v.
A & J SEVEN BRIDGES, INC., D/B/A BOBAK'S SIGNATURE EVENTS, AN ILLINOIS CORPORATION, AND JOHN BOBAK AND ANNA ZALINSKI, DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendants' motion [52] to exclude the expert testimony of Plaintiff's witness, Thomas J. Callahan, pursuant to Federal Rule of Civil Procedure 702. For the reasons explained below, Defendants' motion [52] is respectfully denied without prejudice.

I. Background

A. The Parties

Plaintiff Bobak Sausage Company ("BSC") is an Illinois corporation that manufactures, markets, and sells a variety of wholesale and retail food products. BSC owns three federally registered trademarks, but alleges infringement only of Bobak's word mark ("the Mark"). BSC provides retail grocery, deli, restaurant, and catering services under the marks, and has its principal place of business in Chicago. BSC and its predecessors have used the Mark in commerce continually since 1967, and the Mark has been federally registered by BSC on the Principal Register since 2004.

Defendant A & J Seven Bridges, Inc. ("A & J") is an Illinois corporation that provides banquet hall, conference center, and food catering services at its location at 6440 Double Eagle Drive in Woodridge, Illinois, under the mark "Bobak's Signature Events (and Conference Center at Seven Bridges)". Defendants (and siblings) John Bobak and Anna Zalinski operate the conference center.*fn1 A & J's events consist of approximately forty-five percent corporate functions and fifty-five percent family social events such as weddings and anniversaries. A & J serves steak, chicken, and seafood dishes, and, prior to the commencement of this lawsuit, occasionally served BSC sausage as an appetizer. Most of A & J's patrons either are customers who patronized the business before A & J purchased it or are referrals from those patrons. However, A & J also advertises through its website and in local wedding materials.

B. The Lawsuit

Early in 2005, BSC orally granted A & J a limited license to use the Mark as part of its d/b/a "Bobak's Signature Events." The license was terminable at will and was conditioned upon A & J's execution of a formal written trademark license agreement. Since at least April of 2005, A & J has used the registered trademark "Bobak's" as part of its trade name for banquet and catering services. BSC alleges that since it granted the oral license in January 2005, it has repeatedly (albeit unsuccessfully) demanded that A & J execute a formal written license agreement. In October 2006, BSC provided A & J with a draft formal trademark license agreement with BSC, but A & J did not execute that agreement. On July 10, 2007, Plaintiff sent A & J a formal notice of termination of the alleged license agreement. Despite that notice and repeated demands to cease and desist, A & J continues to use the "Bobak's" name.

C. The Survey

BSC hired Amplitude Research to develop and analyze a trademark confusion survey. Thomas J. Callahan is a senior consultant for Amplitude Research. Callahan has never developed a trademark confusion survey, nor has he ever served as an expert witness. However, Callahan has designed more than 100 academic, governmental, and commercial surveys. Amplitude, in turn, hired Communications Center, Inc. ("CCI") to conduct the actual survey.

The survey consisted of eight questions that were asked of 360 participants. In total, eight thousand calls were made. Two questions were targeted toward understanding the participants' familiarity with the companies and six questions measured the participants' perceptions concerning the products. The participants were selected using a random digit dial sample drawn from the population of the Chicago Metropolitan Statistical Area and reflect census data quotas. The surveyors only contacted households, not businesses.

The survey did not use threshold questions, such as "Are you in the market to buy sausage and rent a banquet facility?" in order to locate and utilize potential purchasers. Additionally, Callahan did not use a third product as a "control." According to Callahan, his controls were the "familiarity" questions and statistical controls that would reveal random guessing. Because the survey was conducted over the phone, the participants did not see the trademarks in question. The marks referred to in the survey were "Bobak's brand food products" and "Bobak's Signature Events." The surveyors did not inform the participants what products and services each company provided.

The participants answered according to a scale (provided by the surveyor), ranging from strongly agree to strongly disagree. The surveyors asked follow-up questions to ascertain why the participants answered as they did. Verbatim responses to the questions were coded and tabulated by Amplitude. After analyzing the survey, Callahan concluded that 31%-43% of the participants "agree it is likely that Bobak's brand food products and Bobak's Signature Events have the same ownership, management, or ...


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