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Maui Jim, Inc. v. Smartbuy Guru Enterprises

United States District Court, N.D. Illinois, Eastern Division

October 29, 2019

MAUI JIM, INC., Plaintiff and Counterclaim Defendant,


          Honorable Marvin E. Aspen United States District Judge.

         Presently before us is Defendants and Counterclaimants SmartBuy Guru Enterprises, Motion Global Ltd., SmartBuyGlasses Societá a Responsabilitá Limitata, and SmartBuyGlasses Optical Limited's (collectively “SmartBuyGlasses” or “SBG”) motion to exclude survey and testimony of Brian M. Sowers (Dkt. No. 417.) For the following reasons, we deny Defendants' motion to exclude.


         Plaintiff Maui Jim, Inc. (“Maui Jim”) retained Brian Sowers of Applied Marketing Science, Inc. to run a survey to test Maui Jim's allegation that SBG's website gives consumers the impression SBG is an authorized Maui Jim retailer. (Pl. Mem. in Opposition to Def. Mot. to Excl. (“Pl. Mem.”) (Dkt. No. 441) at 1.) Defendants argue Sowers' methodology in conducting this survey was “so flawed that this Court should exclude it and Mr. Sower[s'] related testimony.” (Def. Mem. in Support of Mot. to Excl. (“Def. Mot.”) (Dkt. No. 418) at 1.) SBG relies heavily on the expert report and deposition testimony of Dr. Howard Greenwald to criticize Sowers' survey. (Id.) Dr. Greenwald has a PhD in Sociology and has published extensively in the field of public health, including research and survey design in public health. (Pl. Mem. Ex. A (Dkt. No. 441-1) at 1-2.)

         SBG puts forward three arguments against Sowers' survey: (1) the term “authorized retailer” is too ambiguous to give reliable survey results; (2) the “net confusion” survey control method invalidates the results; (3) the survey does not replicate realistic shopping conditions or use a proper sample. (Def. Mem. at 1-2.) Plaintiff responds that “authorized retailer” is a term of art that any ordinary person understands in the same way as Sowers used the term. (Pl. Mem. at 7-11.) Plaintiff defends the “net confusion” approach as the common practice in survey design for trademark cases. (Id. at 11-12.) Finally, Plaintiff explains the survey design replicated the shopping experience as much as possible and accurately reflected SBG's actual consumer pool; they also point out Dr. Greenwald had not seen the survey design himself before preparing his critique. (Id. at 13-15.)

         SBG argues the purported errors in Sowers' survey design mean we should exclude the survey and related testimony under either Rules 403 or 702. Fed.R.Evid. 403 and 702, (Def. Mem. at 1.) Defendants argue the Court should exclude unreliable expert testimony in its “gatekeeping function” under Rule 702 and/or the Court should consider the unreliable survey evidence as “likely to confuse a jury” and therefore prejudicial under Rule 403. (Id.)


         “It is the job of the district court to ensure that the expert's opinion is reliable and relevant to the case, and thus, the district court is given broad discretion to do so.” U.S. v. Young, 316 F.3d 649, 656 (7th Cir. 2002). “An expert must offer good reason to think that his approach produces an accurate estimate using professional methods, and this estimate must be testable.” Durkin v. Equifax Check Servs., Inc., 406 F.3d 410, 421 (7th Cir. 2005) (quoting Zenith Elecs. Corp. v. WH-TV Broad. Corp., 395 F.3d 416, 419 (7th Cir.2005)).

         “At the summary judgment stage, ‘the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'” Illinois Temale Co. v. El-Greg, Inc., No. 16 C 5387, 2018 WL 1534971, at * 7 (N.D. Ill. Mar. 29, 2018) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510 (1986)). The trial court's ultimate conclusion on the likelihood of confusion in a trademark case is a finding of fact. AHP Subsidiary Holding Co. v. Stuart Hale Co., 1 F.3d 611, 616 (7th Cir. 1993). Conclusion of that question of fact must be “approached with great caution.” AutoZone, Inc. v. Strick, 543 F.3d 923, 929 (7th Cir. 2008) (quoting AHP Subsidiary Holding, 1 F.3d at 616).


         We find no merit in Defendant's claim that Sowers' survey results were so unreliable as to warrant exclusion without a Daubert hearing. Evidence is relevant if it “has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.” Fed.R.Evid. 401(a) and (b). Expert witnesses' specialized knowledge is admissible if “it will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702(a). We consider several factors, including “the expert witness's experience in a particular field, ” “[his] helpfulness to the jury, ” and “reflect reliable application” of “reliable principles and methods.” Young, 316 F.3d at 656. Survey evidence is admissible and reliable when it does not contain leading or suggesting questions. Muha v. Encore Receivable Management, Inc., 558 F.3d 623, 625-26 (7th Cir. 2009). A properly designed control group is also vital in a survey intended to draw inferences about consumer behavior. See DeKoven v. Plaza Associates, 599 F.3d 578, 580 (7th Cir. 2010) (holding the same in the context of a debt collection letter survey).

         One fact at issue in trademark infringement claims is whether consumers in the relevant market confuse the alleged infringer's mark with the complainant's mark. AHP Subsidiary Holding, 1 F.3d at 615 (citing Forum Corp. of North Am. v. Forum Ltd., 903 F.2d 434, 439 (7th Cir. 1990)). The Seventh Circuit has repeatedly allowed survey evidence using only photographic comparison to determine consumer confusion. Id. at 616; Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 959-60 (7th Cir. 1992) (endorsing reliability of this sort of survey evidence in a dispute about Gatorade); McGraw-Edison Co. v. Walt Disney Productions, 787 F.2d 1163, 1172 (7th Cir. 1986). Opinions compiled in an appropriate consumer survey are one form of expert testimony that can help determine confusion. See Taylor v. Cavalry Inv., 365 F.3d 572, 575 (7th Cir. 2004). A properly conducted consumer survey is one method of proving likelihood of mark confusion. See Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 464-65 (7th Cir. 2000) (pointing to a statistically reliable consumer survey as an appropriate method for proving mark confusion). One way to improve the reliability of consumer surveys is to include a “don't know/unsure” option. DeKoven, 599 F.3d at 581.

         We will discuss each of Defendants' arguments against the reliability of Sowers' survey in turn. Because we ultimately do not find them persuasive enough to render Sowers' survey unreliable, we deny Defendants' motion to exclude.

         I. The Term “Authorized Retailer” is Not So Ambiguous ...

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