United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Marvin E. Aspen United States District Judge.
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.
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.)
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.)
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.
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)).
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
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).
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.
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
The Term “Authorized Retailer” is Not So