This is a trademark infringement and unfair competition action arising from the parties’ respective uses of the word “IMPOSSIBLE.” Impossible Foods is the widely known creator of the Impossible Burger and other plant-based meat products. Defendants/Counter-Plaintiffs Joel Runyon and Impossible X LLC (collectively, “Impossible LLC”) are an individual and his corporate entity who, over the past decade, have been involved in a variety of ventures—including search engine optimization, social media influencing, and fitness and dieting advice—all loosely affiliated with the word Impossible.
Impossible Foods filed two motions in limine to exclude the testimony of Dr. Jennifer Vanderhart and Dr. Robert Palmatier, while Impossible LLC sought to exclude portions of John Plumpe’s rebuttal testimony.
Economics Expert Witness
Dr. Jennifer Vanderhart is an economist and the managing director of a consulting firm providing services in connection with litigation, regulatory proceedings, and valuation analyses. She holds a Ph.D. in economics from Texas A&M University, where she previously taught in the Department of Economics and the Department of Management in industrial organization, public economics, and econometrics.
Marketing Expert Witness
Dr. Robert W. Palmatier is a Professor of Marketing at the University of Washington’s Foster School of Business, where he has taught since 2007. He holds a Ph.D. in marketing from the University of Missouri and has held a variety of academic and industrial positions, with a focus on marketing strategy, consumer loyalty and decisionmaking., and methodological approaches for analyzing marketing data.
Valuation Expert Witness
John G. Plumpe is the managing director of an economic consulting firm and holds a Master of Science in Mechanical Engineering from the University of Illinois and an M.B.A. from the University of Chicago Booth School of Business. Plumpe’s practice focuses on the analysis of damages, monetary relief, and valuation issues in intellectual property litigation.
Discussion by the Court
Jennifer Vanderhart
Vanderhart is Impossible LLC’s damages expert and has prepared a report in which she opined that Impossible LLC is entitled to corrective advertising damages for Impossible Foods’ use of its IMPOSSIBLE-formative marks in connection with its swag and cookbook.
In her report, Vanderhart opined that corrective advertising damages may be calculated by multiplying Impossible Foods’s swag and cookbook-related expenses by three to five, based on Palmatier’s opinion that “Impossible LLC would likely have to spend 3 to 5 times as much to correct false or unwanted brand associations as was originally spent by Impossible Foods to create these associations.”
During the relevant time period, she calculated that “Impossible Foods has spent an estimated $623,280 in ‘swag’-related expenses” and “has spent an estimated $194,722 in cookbook-related expenses,” opining that “total corrective advertising damages are in the range of $2,454,006 to $4,090,010.”
Impossible Foods filed a motion to exclude Vanderhart’s opinions on three grounds. To begin with, Impossible Foods argued that she failed to assess any actual harm to the value of Impossible LLC’s asserted marks and has “made no attempt to calculate lost sales caused by the alleged infringement.” Second, Impossible Foods argued that she did not properly measure advertising costs because her calculations are based on production costs rather than advertising expenditures and include the cost of producing items that are not accused of infringing Impossible LLC’s marks. Finally, Impossible Foods argued that Vanderhart improperly relied on Palmatier’s three-to-five multiplier, which itself is “derived from a single, irrelevant study.”
Analysis
The Court agreed with Impossible Foods that Vanderhart neglects to quantify the harm to Impossible LLC’s asserted trademarks by Impossible Foods’s alleged infringement or to even estimate their value in the first instance. However, this does not require that her testimony be excluded at the Daubert stage, where the focus is on her qualifications and the reliability of her methodology.
Impossible Foods also argued that Vanderhart’s testimony is unreliable because her calculations include expenses by Impossible Foods that are unrelated to advertising expenditures for allegedly infringing products.
The Court explained that the touchstone of corrective advertising damages is to restore the harm to the value of the asserted trademark which includes, among other things, marketing and advertising costs.
As to Impossible Foods’s swag-related costs, Vanderhart was not required to separate marketing and advertising expenses from production costs because she explained that the swag items were themselves the advertising. Because the swag items were not offered for sale and were produced solely for promotional purposes, it would be reasonable to infer that the items themselves were the advertisements. That said, because Impossible LLC has not accused all swag items (e.g., water bottles, stickers, etc.) of infringement—and does not and cannot contend that the asserted trademarks even include those items—the Court agreed with Impossible Foods that her calculations are overinclusive.
While the Court will not exclude Vanderhart’s testimony in this respect, Impossible Foods will be permitted to impeach the correctness of her valuations through cross-examination and other evidence.
As to Impossible Foods’ cookbook-related costs, Vanderhart’s testimony is excluded, since she relies exclusively on the cost of producing the cookbooks and does not include any expenses at all for marketing and advertising.
Robert Palmatier
Impossible Foods sought to only preclude Palmatier from testifying that corrective advertising damages may be calculated by applying a three-to-five multiplier to Impossible Foods’s marketing expenditures on the ground that this opinion is based “on a single academic paper,” namely, “a decades old study involving college students and radio advertising for mouthwash finding that three corrective impressions were required to correct one misimpression.”
According to Impossible Foods, there is just “too great an analytical gap” between Palmatier’s multiplier opinion and the data upon which he relies.
The Court did not read Palmatier’s multiplier opinion as narrowly as Impossible Foods did. Far from relying on a single outdated study, Palmatier explained why any harms to Impossible LLC’s brand equity caused by Impossible Foods’ alleged infringement would be “magnified” due to the “similarity of wordmarks due to other points of similarity,” “high level of marketing spend,” and “increased use of broadly-focused marketing.”
Palmatier explained that linkages to unwanted and negative associations are more impactful and difficult to eliminate than positive associations and that these negative associations are particularly strong “due to the synergistic interaction” of multiple “magnifying factors” identifying industry practices of responding to such associations with targeted rehabilitative advertising.
In articulating his reasoning, Palmatier relied on a variety of case studies and analyses and particularly pointed out how his multiplier opinion is based on the application of fundamental, well-accepted marketing principles.
The Court accordingly agreed with Impossible LLC that Palmatier’s multiplier opinion is sufficiently supported to survive Impossible Foods’s Daubert challenge.
John Plumpe
Plumpe is Impossible Foods’ damages expert and has prepared a rebuttal report in which he argued that Vanderhart’s calculations are not a reliable estimate of corrective advertising damages.
Plumpe asserted that Vanderhart’s damages calculation is speculative, unsupported, and would result in a windfall to Impossible LLC due to her failure to analyze the value of Impossible LLC’s marks, failure to account for Impossible LLC’s low revenues and marketing expenses, and “the lack of evidence of actual financial harm to [Impossible LLC] in the range contemplated by the prospective correcting advertising damages award.”
Impossible LLC challenged Plumpe’s testimony on two primary grounds. First, Impossible LLC argued that several of his opinions (specifically, as to consumer confusion, corrective advertising, and search rankings) fell outside of the scope of his expertise as an economist and professional damages expert and are either irrelevant or unhelpful to the jury. Second, Impossible LLC argued that portions of Plumpe’s expert report included improper legal opinions that are not proper subjects of expert testimony.
Despite Impossible LLC’s attempts to cast Plumpe’s testimony as venturing outside of his area of expertise (e.g., by improperly opining on “causation” and other “noneconomic” issues), the Court found that his opinions are properly limited to evaluating whether the damages claimed by Impossible LLC can be economically attributed to Impossible Foods’s alleged infringement. Specifically, Plumpe’s rebuttal report sets forth his economic reasoning and analysis for his conclusion that Vanderhart’s opinions failed to capture injuries plausibly attributable to Impossible Foods’ swag and cookbook by failing to account for external market forces.
Regarding Impossible LLC’s argument that Plumpe improperly offered legal conclusions, the Court disagreed. It is permissible for Plumpe to explain the framework and underlying principles to orient the jury.
Held
- The Court granted in part and denied in part Impossible Foods’ motion in limine to exclude the testimony of Dr. Jennifer Vanderhart.
- The Court denied Impossible Foods’ motion in limine to exclude the testimony of Dr. Robert Palmatier.
- The Court denied Impossible LLC’s motion in limine to exclude the testimony of John Plumpe.
Key Takeaway
While it is true that Impossible LLC will not be able to recover corrective advertising damages without showing harm to its allegedly infringed marks, the Court is not aware of any authority suggesting that a damages expert must provide all the evidence required to support a damages award for their testimony to be admissible.
Nor is the Court persuaded by Impossible Foods’ suggestion that Vanderhart’s testimony is “unreliable and unhelpful” absent a valuation of Impossible LLC’s asserted marks, since the jury is permitted to consider her testimony together with any other evidence presented at trial in considering the ultimate issue whether Impossible LLC’s marks have been harmed by Impossible Foods’ alleged infringement.
Case Details:
| Case Caption: | Impossible Foods Inc. V. Impossible X LLC |
| Docket Number: | 5:21cv2419 |
| Court Name: | United States District Court, California Northern |
| Order Date: | February 26, 2026 |
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