In 2017, twin brothers Michael and David Postar split their interests in Affordable Storage, a self-storage business that they jointly owned and operated for many years. As part of the split, the brothers assigned certain registered trademarks associated with the business to a holding company in which they both own a 50% stake. Michael has exclusive rights to use those marks in Lubbock County, whereas David has exclusive rights to use them in Tom Green and Midland Counties.
Years after the split, David, through his company Gargoyle Management, Inc., licensed a derivative of one of the marks to the brothers’ former employee, Gavin Hyland. Hyland and his wife operate their own self-storage business, Slaton Affordable Storage, Inc. Their two locations—one of which is in Lubbock County—are also named Affordable Storage.
Michael sued the Hylands, David, and their companies for, among other things, trademark infringement, unfair competition, common-law misappropriation, and civil conspiracy. Generally, Michael alleges that the Defendants are violating federal and state law by using unauthorized derivatives of the Affordable Storage IP to compete against Michael in Lubbock County.
Michael identified John M. Cone as his expert witness to testify about (1) whether Michael has protectable rights in various marks; (2) whether those rights have priority over the Hylands’ use of certain marks; and (3) whether the Hylands’ use of those marks is likely to cause confusion.
In response, the Hyland Defendants filed a motion to exclude the expert testimony of Cone, an attorney who specializes in trademark law.
Trademarks Expert Witness
John M. Cone worked as an agent and attorney in intellectual property matters, first in England and subsequently in the United States, since before 1970, concentrating on trademark law.
In England, he was a Chartered Patent Agent and a Member of the Institute of Trademark Agents. Cone was responsible for the worldwide trademark practice of the firm of patent and trademark agents of which he was a partner. In 1980, he moved to the United States, and in 1983 received a Doctor of Jurisprudence degree from Southern Methodist University, graduating cum laude. Cone had obtained a B.A.(Hons.) from the University of Oxford, England in 1968.
Discussion by the Court
1. According to the Defendants, Cone’s opinions in his expert report are impermissible legal conclusions
At the outset, the Defendants did not challenge Cone’s qualifications as an expert. Nor did they challenge the reliability of the methodology underlying Cone’s expert report. Instead, they argued that the opinions in his report are impermissible legal conclusions that invade the province of the Court and merely tell the jury what result to reach.
In their motion, the Defendants objected to 30 statements or opinions contained in Cone’s report. Each objection features the same stock argument: “This is an improper legal conclusion, seeking to tell the jury what law governs an issue and what the law means. It is not an opinion to help the factfinder understand the evidence or an issue in question.” Taken together, these objections effectively sought a blanket prohibition on Cone’s testimony.
In response, Michael assured the Court that “Cone’s ‘legal conclusions’ will not be presented to the jury.” Moreover, he argued that there is no way to know at this point whether these purported “legal opinions” will “actually be offered at trial.” Besides, he said, nothing prevented experts from relying on legal authority in forming their opinions.
In response to the Defendants’ 30 objections, Michael offered his own stock response: “This is not a legal conclusion because it does not omit the supporting facts; it is based on Cone’s analysis of the relevant sources as applied to his independent and objective review of the pleadings and other documents identified in his report.”
ii. It is premature to exclude Cone’s expert testimony
The Court denied the Defendants’ motion to exclude Cone’s expert testimony as premature.
Cone was expected to testify that the Hylands’ use of certain marks is likely to cause confusion with marks owned by Postar IP. His opinions could be inadmissible to the extent they articulate a legal standard or tell the jury what result to reach.
The Court required additional context to determine whether Cone’s opinions, if offered, would take the form of impermissible legal conclusions. The Defendants are effectively asking for a blanket ban on Cone’s testimony, yet his report offers potentially permissible opinions that do not necessarily constitute improper statements of law.
Held
The Court denied the Hyland Defendants’ motion to exclude the expert testimony of John M. Cone
Key Takeaway
Courts have found that the presence of impermissible legal conclusions in an expert’s report is not a sufficient basis to strike the entirety of his testimony, particularly where, as here, the report provides additional, potentially admissible opinions.
Case Details:
| Case Caption: | Postar V. Hyland |
| Docket Number: | 5:24cv19 |
| Court Name: | United States District Court, Texas Northern |
| Order Date: | January 20, 2026 |
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