Rebel, a cheerleading apparel brand based in Texas, sells, among other products, a backpack called the “Rebel Dream Bag.” Plaintiff holds a trademark in the Dream Bag’s “two-dimensional hourglass shaped enclosed curved figure double outline design, with an outlined straight rectangular shaped top line and an outlined curved three-fourth rectangular shaped line underneath, both inside the curved figure outline design,” as pictured.
Jim Lundberg, under the business name CheerStix, operated an interactive internet store which sells cheerleading apparel, including cheerleading backpacks. In August 2021, Lundberg engaged designer Fernando Robert to develop a cheerleading backpack. Lundberg sent Robert examples of his desired design, including images of the Rebel Dream Bag and Nfinity Bag. Lundberg said he wanted his “own version” of a bag, though Robert noted that his mock-up possessed many similarities to the Rebel bag.
After Defendant’s bag—the “It Bag” or “CS Athletic Bag”—entered the market, Rebel sued Lundberg for trademark infringement.
Defendant filed a Daubert motion to exclude the expert report of Robert Wallace, who opined, based upon survey evidence, that the Dream Bag has acquired secondary meaning. Plaintiff separately moved to exclude the expert report of Hrag Nassanian, who opined upon the functionality of the Dream Bag’s trade dress.
Branding Expert Witness
Robert Wallace has extensive experience in brand identity strategy and design as the former managing partner of Wallace Church, Inc., one of the most recognized and accomplished brand identity strategy and design consultancies.
Product Design Expert Witness
Hrag Nassanian worked for over 20 years as a product designer and developer of bags, including backpacks, duffel bags, gym sacks, shoulder bags, luggage, roller bags, totes, and messenger bags. Nassanian built the product line of basketball bags at Nike and led the company’s global bag product design and development for several kinds of athletic bags. Nassanian previously taught a college course on principles of bag design and currently consults on product design and development.
Discussion by the Court
Rob Wallace
Plaintiff retained Rob Wallace to testify regarding whether the Rebel Dream Bag’s trade dress has acquired secondary meaning among the consuming public. Wallace’s survey included a population of respondents who purchased cheerleading backpacks within the last twelve months and planned to do so again in the next twelve months.
Defendant argued that the Court should exclude Wallace’s expert testimony and expert report based upon the survey’s use of an unreliable methodology.
1. Universe
Lundberg argued that the survey consisted of an underinclusive universe, as it excluded those consumers who have not purchased cheerleading equipment in the last 12 months but plan to do so in the next 12 months.
However, Lundberg has not shown that excluded consumers from the survey universe represent a “sizeable portion” of the market. Consequently, Lundberg’s criticisms related to the sampling universe go to the weight of the evidence, not the survey’s admissibility.
2. Whether Survey Questions Were Clear, Precise, and Nonleading
Here, Defendant contended that the following question was flawed: “From the design of this product, do you believe that this backpack comes from one source/ manufacturer or is it a generic design that is used by many different backpack manufacturers?”
A critique of whether the survey question focused on the correct issue did not affect admissibility, but rather, “goes to how much weight the Court should give the survey results.” Accordingly, Lundberg’s argument regarding this survey question goes to the survey’s weight, not admissibility.
Defendant additionally argued that the lack of a survey pre-test warrants exclusion. On the contrary, pre-tests “are not required” and do not justify the exclusion of that expert’s testimony.
Therefore, the Court held that Wallace Survey’s lack of a pre-test did not render the survey inadmissible.
3. Other Concerns
Defendant argued that the Wallace Survey warrants exclusion, in part, because it lacked a sufficient control group. Because courts have admitted surveys with no control group at all, criticisms of the Wallace survey’s control group here go to its weight, not admissibility.
Likewise, the failure to remove Rebel’s star-shaped “R” design logo goes to the weight of the survey, not admissibility. Since the images of the Rebel Dream Bag presented to Wallace Survey respondents included this indicium of origin, Lundberg argued the Wallace Survey “simply measures how many respondents recognize the backpack as coming from one company because it contains a brand logo on it.”
The presence of source-identifying indicia, however, does not necessarily make a survey inadmissible. Here, the star “R” logo appeared only on Rebel’s backpack, not on Lundberg’s. As a result, there exists little risk of respondents mistaking the Rebel and Lundberg backpacks as deriving from the same source on the basis of the logo.
In summary, for the reasons described above, the Court found the Wallace survey admissible.
Hrag Nassanian
Nassanian opined on the functionality of the Rebel Dream Bag design, evaluating the functionality of the bag’s individual components and the overall bag in the context of its use generally and its unique role in cheerleading.
Nassanian concluded that Rebel Dream Bag’s trade dress overall remains functional, as do the following components on the bag: contrasting color zipper pocket outlines; front pocket style and placement; side mesh and placement; auxiliary side pocket style and placement; glitter fabric; interior-fabric monogramming patterns; shoe compartment style and placement; and clip placement.
Rebel argued that Nassanian’s lack of knowledge regarding cheerleading renders him ineligible to opine on the Dream Bag, designed for cheerleaders. While Nassanian’s report touches upon the bag’s use in cheerleading, his opinion also encompasses manufacturing details, design choices common to bags generally, and non-cheerleading-specific use of the bag. These opinions derive from Nassanian’s uncontested expertise in bag product design and development, which does not require specific cheerleading knowledge or expertise.
Methodology
Rebel argued that Nassanian’s methodology remains unreliable because he only evaluated the backpack’s functionality based upon its components, not in totality; Nassanian failed to consider alternative designs; and Nassanian only looked at the backpack and cheerleading in preparation for this lawsuit.
Rebel’s challenges lacked merit. First, Nassanian stated that he did evaluate the backpack’s functionality in totality, as well as the bag’s individual components, and the report confirms his assertion. Likewise, Nassanian’s report clearly included consideration of alternative designs, including a lack of contrasting colored zippers, a different radius for front pocket styles, and alternative locations for a side mesh pocket. Nassanian also considered other backpack designs. Finally, the fact that Nassanian’s testimony was expressly developed for the purpose of testifying is not unusual; that is undoubtedly the case for most, if not all, retained expert witnesses.
Though Nassanian had not previously worked with competitive cheerleading, he nonetheless possesses extensive experience with bag design and development, and with specialty athletic bags in particular.
The the Court found that Nassanian’s methodology met the minimum requirements under Daubert.
Held
- The Court denied Defendant’s Daubert motion to exclude the expert report of Robert Wallace.
- The Court denied Plaintiff’s motion to exclude to the testimony of Hrag Nassanian.
Key Takeaway
Nassanian’s methodology extensively considered his observations of the Rebel Dream Bag and other athletic bags, and Nassanian’s extensive experience and knowledge within the field of bag design and development. This methodology creates no issues for reliability under Daubert.
An expert might draw a conclusion from a set of observations based on extensive and specialized experience.
Case Details:
| Case Caption: | Rebel Athletic Inc. V. Lundberg |
| Docket Number: | 1:22cv3330 |
| Court Name: | United States District Court, Illinois Northern |
| Order Date: | February 11, 2026 |
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