Expert Witness Profiler

Category: Marketing Expert Witness

  • Court limits testimony of Marketing Expert Witness citing lack of experience analyzing consumer confusion from either a legal or marketing perspective in trademark infringement suit

    Court limits testimony of Marketing Expert Witness citing lack of experience analyzing consumer confusion from either a legal or marketing perspective in trademark infringement suit

    In the case involving Plaintiff Blue Bottle Coffee, LLC and Defendants Southern Technologies, LLC and Hui Chuan Liao, the Plaintiff, a coffee business, filed a lawsuit in August 2021 and an amended complaint in November 2021. The dispute centered on alleged trademark infringement and unfair competition claims. The Plaintiff held multiple registered trademarks, including two solely consisting of a shade of blue, Pantone 2995 C, and asserted trade dress in its product packaging.

    Defendants, who began using the name “Blue Brew” in 2017, were accused of selling coffee-related products with packaging and branding that closely resembled the Plaintiff’s, including the use of a similar shade of blue and the word “blue.”

    On April 7, 2023, the Plaintiff served three expert reports from Jeffrey S. Andrien, Norman Broadhurst; and Jill Morton. Jill Morton provided testimony regarding branding and the use of color in the case. On May 22, 2023, updated versions of these reports were provided to the Defendants. Jill Morton was deposed by the Defendants on July 20, 2023. Subsequently, on August 11, 2023, the Defendants filed a Daubert motion to exclude Jill Morton’s testimony challenging the reliability and relevance of each of Morton’s three conclusions and her corresponding analyses: (A) the color blue as a source-identifying attribute of Plaintiff’s brand, (B) the color blue that the parties used in connection with their brands was “similar or nearly identical”; and (C) the combined effect of the color blue and the word “blue” on Defendants’ products would cause consumer confusion with Plaintiff’s products.

    Marketing Expert Witness

    Jill Morton is the CEO of Colorcom, a consulting firm that “specializes in helping companies understand how to use color most effectively.” Morton received a Bachelor of Fine Arts from the University of California, Santa Barbara, where she also completed a fifth year of study in the Graduate School of Education. She also received a Master of Fine Arts in design from the University of Hawaii. As a color consultant, Morton leverages her extensive technical and professional knowledge about color to provide guidance on a diverse range of projects. Her expertise encompasses aspects such as the psychological impact of color, creative color combinations, harmonious color choices, visual ergonomics, and staying current with marketing trends. Morton applies these critical factors to offer successful solutions for her global clientele.

    Discussions by the Court 

    Jill Morton had a degree in Art Education and an MFA in design, along with over twenty years of experience as a “brand identity expert.” She had also taught courses on color at universities and colleges for over 20 years, including a graduate-level course on the psychological and physiological effects of color. The Court found her qualified to provide testimony regarding Plaintiff’s use of the color blue as a source-identifier, emphasizing the broad conception of expert qualifications under Rule 702.

    Defendants had argued that Morton’s qualifications were unreliable because she wasn’t a licensed psychologist or a scientist and hadn’t published peer-reviewed papers. However, Morton clarified that she referred to herself as a “color consultant” and only discussed psychology in the context of how it related to branding and consumer behavior, drawing from her extensive marketing experience. The Court agreed that her expertise was rooted in her marketing experience, and any questions about her qualifications went to the weight of her testimony, not its admissibility.

    Defendants also contested the reliability of Morton’s testimony because she didn’t conduct consumer surveys or interview Blue Bottle employees about their advertising strategies. Morton defended her opinion, stating that she relied on her experience advising brands on color and consumer associations. The Court agreed that the absence of surveys or interviews impacted the weight of her testimony but didn’t render it inadmissible.

    To prevail in a trademark infringement claim, the claimant needed to demonstrate the validity of their mark, which could be through federal registration, a suggestive mark, or secondary meaning in the market. Morton’s discussion about the functionality of blue in branding was relevant to the trademark infringement inquiry, as it related to the validity of the marks.

    Morton proceeded to assert that the shade of blue used by the Defendants on their packaging, Pantone 305 C, was “nearly identical” to the Blue Bottle Blue Marks, Pantone 2995 C. She emphasized her expertise in both Pantone and CMYK colors, backed by 20 years of experience in understanding how consumers perceive these color systems.

    To facilitate the jury’s evaluation of these color similarities, Morton conducted a Pantone color analysis. Pantone, a company and system for classifying colors, formulates mixing formulas for various shades. Morton provided a breakdown of the color ingredients for Pantone 2995 C (Blue Bottle Blue) and Pantone 305 C (Defendants’ blue) based on the Pantone Color Guide. She explained that these colors contained varying proportions of Pantone Pro Blue and Pantone Transparent White, which determined the degree of lightness for each shade.

    While Pantone 2995 C (Blue Bottle Blue) had a relatively small percentage of Pantone Ref Blue, Morton pointed out that it shared identical ingredients with Pantone 305 C (Defendants’ Blue) in terms of Pantone Pro Blue and Pantone Transparent White. Consequently, Morton concluded that the shades of blue were “similar or nearly identical.”

    Morton had also conducted a CMYK analysis, which is a color formula system for printing materials. It involves using varying percentages of cyan, magenta, yellow, and black to create specific shades of color. In her analysis, Morton compared the CMYK formulas for Plaintiff’s and Defendants’ shades of blue, using a Pantone guide called “Color Bridge by Pantone.” She found that both colors predominantly consisted of cyan, with only minimal amounts of other colors. Additionally, Morton analyzed two unrelated shades of blue, contrasting them with the Plaintiff’s and Defendants’ colors, noting that they contained more magenta and black.

    Defendants had primarily questioned the reliability of Morton’s CMYK analysis, contending that Plaintiff provided no evidence to establish the peer-reviewed or previously accepted nature of her particular CMYK analysis methodology. Morton had clarified that she used the CMYK analysis to translate and confirm the Pantone color composition and similarities she observed. Her approach didn’t involve mathematical analysis but consisted of commentary regarding the CMYK breakdown of four different shades of blue, including those of the Plaintiff and Defendants, all based on Pantone formulas.

    The Court held that in certain fields, Morton’s extensive experience was considered a primary basis for reliable expert testimony, citing Lucido v. Nestle Purina Petcare Co. Her analyses were conducted based on two decades of practical experience with these techniques, aimed at explaining why the two colors might appear similar to the human eye. Given the relatively specialized nature of color’s role in branding, her experience and method explanation were deemed adequate. Any concerns about the reliability of Morton’s analysis could be addressed through cross-examination.

    Morton had stated that she conducted the two color analyses with the purpose of assisting the jury in evaluating the similarities between the marks, as the “Similarity of marks” is a relevant factor in establishing the likelihood of confusion, one of eight factors considered in trademark infringement cases.

    Defendants had argued that there was no need for a “framework” for jurors to compare two colors, as the differences between Plaintiff’s BLUE BOTTLE BLUE Marks and the colors used by Defendants were obvious, and one didn’t need to be a “color psychologist” for such a comparison. Morton herself acknowledged that jurors who had passed some color vision test could perform the color comparison just as well as she could. However, the Court recognized that Morton’s testimony went beyond a mere side-by-side comparison. She delved into the ingredient breakdown of the two Pantone colors, especially considering Plaintiff’s trademark registrations specifically claimed Pantone 2995 C. Morton translated the Pantone ingredients into ink makeups for printing, aiming to provide a nuanced perspective on color and its components as seen from a professional color consultant.

    While jurors could assess color similarity on their own, the Court found that Morton’s expertise could be useful in providing a framework for color interpretation and offering insights into the similarities between Plaintiff’s and Defendants’ shades of blue. Therefore, the Court concluded that Morton was permitted to provide this framework and analyze color similarities based on her experience as a color consultant.

    Morton also relied on Blue Bottle’s longstanding use of its marks and the combined effect of the BLUE BREW brand’s use of a similar color and the word “blue” in its name to argue that there was a likelihood of consumer confusion. Defendants challenged her lack of experience analyzing actual instances of consumer confusion from either a legal or marketing perspective. The Court agreed with Defendants, stating that her testimony wouldn’t assist the trier of fact, as it was essentially a side-by-side comparison, and her determination usurped the role of the jury as factfinders.

    Held

    In conclusion, the Court granted the motion to exclude Morton’s testimony regarding the likelihood of confusion between Plaintiff’s and Defendants’ products but allowed her testimony in all other respects.

    Key Takeaways:

    This case illustrates several important considerations for expert witness testimony under the Daubert standard. First, reliability hinges on the expert’s qualifications and experience in their discipline. The Court found Morton qualified to testify about color and branding given her extensive background, though unqualified on consumer psychology. Second, helpfulness to the jury is key for relevance. Morton’s color analyses assisted the jury in evaluating trademark validity and similarity, but her opinion on consumer confusion usurped their role.  

    Third, methodology matters, especially for scientific testimony. Morton’s color analyses using standard systems were sufficiently reliable from her experience, but her “consumer confusion” analysis lacked sound methodology. Fourth, ultimate legal issues are off limits. Though experts can embrace ultimate factual issues like similarity, they cannot give opinions telling the jury the legal result to reach. Fifth, if in doubt, exclude under Rule 403. Expert opinions with weak methodology risk confusing or misleading jurors. 

    In summary, Daubert requires a flexible inquiry, but proponents must show experts are qualified, use reliable methodology, and provide opinions helpful to the jury without invading its role or confusing the issues. This helps ensure expertise reliably informs while preserving the jury’s fact-finding function. 

  • Court rejects expert testimony on unfair trade practices and consumer expectations regarding deodorants and antiperspirants; Closes Case

    Court rejects expert testimony on unfair trade practices and consumer expectations regarding deodorants and antiperspirants; Closes Case

    This case involved a putative class action lawsuit filed by four Plaintiffs – Nicole Krause-Pettai, Christy Stevens, Kevin Bolden, and Errol Carreon – against Defendant Unilever United States, Inc. The Plaintiffs claimed that they were deceived into buying Unilever’s deodorant and antiperspirant products because the oversized packaging created the illusion that the products contained more than competitors’ same-weight items.  

    The Plaintiffs brought claims under California’s consumer protection laws – the Consumers Legal Remedies Act (CLRA), False Advertising Law (FAL), and Unfair Competition Law (UCL). They alleged that much of the volume in Unilever’s products was nonfunctional slack fill. The Plaintiffs sought class certification on the basis that Unilever engaged in unfair and deceptive trade practices.   

    Unilever moved for summary judgment and also filed motions to exclude the testimony of the Plaintiffs’ two expert witnesses, Dr. Sher Paul Singh and Dr. Forrest Morgeson III. Unilever argued that federal law preempted the Plaintiffs’ state law claims regarding slack fill in drugs and cosmetics. This was an issue of first impression in the Ninth Circuit.   

    Packaging Expert Witness  

    Sher Paul Singh, Ph.D. is a highly qualified packaging expert with over 26 years of faculty service at the School of Packaging, Michigan State University. He has been widely published on packaging topics, has testified on these subjects, and provided consulting services to companies on a wide range of packaging issues, including those related to slack-fill.

    Marketing Expert Witness 

    Forrest V. Morgeson, III, PhD. is Associate Professor in the Department of Marketing, Eli Broad College of Business, Michigan State University. He also serves as the Co-Director of the Doctoral Program in Marketing. Morgeson teaches marketing management, marketing strategy, and marketing research courses to graduate students. Morgeson’s research focuses on customer satisfaction and customer experience measurement and management. He completed his Ph.D. in 2005 from the University of Pittsburgh.

    Discussions by the Court 

    The Court first addressed the issue of federal preemption. It held that while California’s specific slack fill regulations were preempted by the federal Food, Drug, and Cosmetic Act (FDCA), the Plaintiffs could still bring state claims alleging that the degree of slack fill rendered Unilever’s products misleading under the general federal prohibitions against misleading containers. 

    The Court then turned to Unilever’s motions to exclude the opinions of both of the Plaintiffs’ expert witnesses – Sher Paul Singh and Forrest Morgeson III. 

    Singh, serving as an expert witness, asserted that the accused products contained roughly 20% to 25% less product compared to their available capacity, and he categorized this reduction as entirely nonfunctional in nature. 

    For Singh, the Court found several problems with the facts and data underlying his opinions. First, Singh’s opinions about the “accused products” only seemed to be based on testing two of the three product designs at issue. The data for the third design was omitted due to an alleged “minor copying error.” Second, among the designs Singh did examine, he only looked at two samples of each kind of deodorant or antiperspirant stick. The Court stated that a sample size of two was a statistically weak basis to support such broad conclusions.  

    Defendant also questioned the the lack of clarity regarding the precise number and types of products that Singh had tested and examined. His testimony on this matter was inconsistent, as he alternately mentioned having sampled “ten sticks total” or conducting tests at two different times with “ten sticks” once and “eight sticks” another time. Additionally, he mentioned having analyzed around “20, 25” sticks, but this data was not documented in his report. The tables he used to summarize his “weight” and “volume” calculations did not provide much insight into the underlying data, and it remained unclear whether his findings were based solely on the five sticks identified in the first table or if there was overlapping data between the two tables. Furthermore, the mention of five brand names suggested the potential inclusion of various products with differing formulations, sizes, and scents. Singh’s testimony regarding the number of product containers he “examined” was similarly inconsistent, with estimates ranging from 30 to 60. He meant for his product photographs next to tape measures to constitute “visible data,” but could not recreate the complete dataset during his deposition.  

    The Court also found problems with Singh’s testing methodology and application. His report detailed how he determined the “percentage of slack fill” by measuring the relative heights of product containers and their enclosed products. He also mentioned using an “electronic balance” to weigh the deodorant after extracting it from the container. However, it was only during his deposition that he shed light on the process he followed to extract the product from the casings, which yielded unpredictable results. Before extraction, he mentioned placing the deodorant in the freezer for about ten minutes, followed by a refrigerator set to approximately 35 to 45 degrees for an unspecified duration. Some samples did not come out as expected, and some even broke. Additionally, there were instances where the product was left in the bottom of the container, making it impossible to extract. The number of deodorant sticks affected by these procedures remained unknown, and Singh did not clarify how he overcame these practical challenges or ensured a complete specimen for measurement.

    Unilever raised concerns, particularly regarding the volume test. They argued that Singh inexplicably removed the twist-bottom dispensing “platform and internal components” before calculating a deodorant container’s space, thereby inflating his “maximum capacity measurements” and failing to account for the volume or space occupied by the removed components. The Plaintiffs did not provide a direct response to this accusation. Instead, they pointed out that both sides’ experts found roughly the same amount of total empty space in their analyses. However, the crucial distinction in the case was nonfunctional empty space, and here, the calculations sharply diverged: Unilever’s expert contended it was 0%, while Singh asserted it was 100%.

    In any event, it is unclear which brands and stick designs Singh subjected to this debatable measurement program. 

    Overall, the Court held that Singh’s opinions failed to meet the reliability requirements of Federal Rule of Evidence 702. His opinions were not based on sufficient facts or data. Nor were his principles and methods reliable or reliably applied. Thus, the Court excluded Singh’s testimony. 

    Morgeson provided expert opinions regarding consumer behavior, including the following assertions: Firstly, consumers were inclined to spend limited time scrutinizing package labeling information and typically assumed that larger packages contained more product; Secondly, consumers seldom examined or comprehended net weight labeling on product packages; Thirdly, owing to these consumer tendencies and their limited familiarity with slack fill, Morgeson suggested that the features of Unilever product packaging implied that Unilever customers received less product than they had expected.

    For Morgeson, the Court questioned whether his general expertise in consumer behavior could be reliably applied to opinions about Unilever’s specific consumers. Morgeson did not gather any facts or data related to the products at issue . He referenced no studies concerning the deodorant and antiperspirant market. The Court held that without a foundation explaining why research on food consumers could be extrapolated to this market, there was too great an analytical gap between Morgeson’s data and opinions.  

    The Court found that Morgeson applied no discernible scientific methodology. He merely reviewed general materials and prior research. But he did not analyze any specific data related to Unilever’s products or consumers. As such, the Court held that Morgeson’s testimony was not based on sufficient facts or reliable methods, and excluded his opinions. 

    The Court also granted summary judgment to Unilever on the Plaintiffs’ negligent misrepresentation and fraudulent and unfair prongs claims, because the Plaintiff not only failed to show that general consuming public and targeted consumers would be misled but the Court also could not find any predicate violation of law despite the Plaintiffs’ allegations and the Plaintiffs were also unable to prove the labeling or packaging was false.

    Held  

    In conclusion, the Court granted Unilever’s motions for summary judgment and to exclude expert testimony. It denied the Plaintiffs’ motion for class certification as moot in light of the summary judgment ruling. The Court entered judgment in favor of Unilever on all claims and closed the case on September 30, 2023. 

    Key Takeaways 

    – The Court applied the Federal Rules of Evidence 702 analysis to assess whether the expert opinions were admissible. It looked at whether the testimony would help the fact-finder, was based on sufficient data, and applied reliable principles and methods. 

    – The Court found major deficiencies with the facts, data, methodology, and application used by both of the Plaintiffs’ proposed experts, Singh and Morgeson.  

    – For Singh, the Court found his testing sample size was too small, his dataset was ambiguous and not properly documented, and his testing methodology yielded unpredictable results.  

    – For Morgeson, the Court found his general consumer research couldn’t be reliably applied to this specific product market. He had no data points related to deodorant and antiperspirant consumers. 

    – The Court held that neither expert satisfied the reliability and relevance requirements for expert testimony under Rule 702. 

    The key takeaway is that Courts will rigorously examine the basis, methods, and fit of proposed expert opinions. Deficiencies in facts, unreliable methodologies, or lack of applicability to the specific issues can warrant exclusion. 

  • Court admits image valuation and consumer perception theories with regard to the model and talent industry provided by the Plaintiff’s experts in copyright infringement suit

    Court admits image valuation and consumer perception theories with regard to the model and talent industry provided by the Plaintiff’s experts in copyright infringement suit

    Lopez v. Meyers’ G.M. Enters., Inc. was a copyright infringement case decided in the United States District Court for the Western District of Wisconsin on September 12, 2023. The Plaintiffs were models whose photographs were used without authorization in promotional materials by the Defendants, two businesses operating as Cajun Club. The Plaintiffs filed a motion to allow certain witnesses to testify via video conference at the upcoming trial. The Defendant filed two Daubert motions in limine seeking to exclude the expert testimony of the Plaintiffs’ witnesses, Stephen Chamberlin and Thomas Maronick. 

    Regarding the Plaintiffs’ motion for remote testimony, the Court reserved ruling pending more information from the parties. The Court acknowledged the general rule requiring in-person testimony under Rule 43(a), but also noted possible unique circumstances of this case where the Defendants’ unauthorized use of the Plaintiffs’ images may call for allowing remote testimony. However, the Court required the Plaintiffs to provide more details on which Plaintiffs intended to testify, the necessity of their testimony, and additional legal authority supporting remote testimony.

    Image Valuation Expert Witness

    Stephen Chamberlin holds a Bachelor of Laws and Economics degree from the University of New South Wales, which he completed in 1984. He has over 30 years of experience working full-time in the model and talent industry. Chamberlin is currently associated with Premier International Model Management as an international agent and negotiation director. He previously served in leadership roles at prominent talent agencies including LA Models Management, Warning Management Inc., and Michele Pommier Models. Chamberlin has also represented high-profile celebrity models and talent including Tyra Banks, Claudia Schiffer, and Paris Hilton.

    Marketing Expert Witness

    Thomas Joseph Maronick holds a Juris Doctor degree from the University of Baltimore School of Law, with an emphasis on corporate, business and consumer law. He is a member of the Maryland Bar. He also earned a Doctor of Business Administration degree from the University of Kentucky, as well as a Master of Science in Business Administration from the University of Denver, having majored in marketing.

    Maronick is an Emeritus Professor of Marketing at Towson University College of Business and Economics, where he taught marketing, strategy, and research courses from 1987 to 2017. He previously held faculty positions teaching marketing at the University of Baltimore School of Business and Virginia Commonwealth University.  Additionally, Maronick worked as the Director of the Office of Impact Evaluation at the Federal Trade Commission from 1980 to 1997. Since 1997, Maronick has worked as a marketing consultant and expert witness. He has provided expert services in over 150 cases involving consumer litigation, advertising, trademarks, and survey research.

    Discussions by the Court

    The Court then analyzed the Defendant’s motions in limine in sufficient detail under the Daubert standard and Rule 702.

    For Stephen Chamberlin, the Defendant argued he was unqualified to provide an objective estimate of the value of the photographs because as the Plaintiffs’ agent, his role was to secure the highest possible price. The Defendant also asserted Chamberlin lacked experience pricing specific images in the adult entertainment industry and did not have a marketing degree. Additionally, the Defendant contended Chamberlin improperly inflated his calculations by using Plaintiffs’ highest paying previous jobs with organizations offering significantly more public exposure than Cajun Club. Defendant also appeared to argue Chamberlin improperly multiplied the damages as well. 

    In response, the Plaintiffs stated Chamberlin’s extensive experience as a models’ agent qualified him to testify on the value of the photographs. They contended he reliably applied industry principles to the Plaintiffs’ situation. The Plaintiffs argued Chamberlin’s testimony would help determine fair market value because negotiating modeling jobs requires specialized skills.

    The Court found Chamberlin passed the Daubert test, except for the multiplier issue. Chamberlin’s 30 years of experience representing over 3000 models established he was qualified to testify on image value. The Court stated Chamberlin’s role negotiating for models demonstrated his industry knowledge, making him qualified despite the Defendant’s bias argument. The Court noted Chamberlin’s valuation methodology was well-explained. He based the hypothetical day rate on factors like Plaintiff models’ desirability, work history and the nature of the business seeking her services to calculate the day rate. However, some of the sample contracts used by Chamberlin, presumably as a basis for calculating a day rate, involved photoshoots that lasted longer than one day which, in turn, could lead to an overestimation of the Plaintiffs’ payment history for one-day photoshoots, though the Defendant could address the same through cross-examination. 

    The Court explained Chamberlin reliably identified four categories of “use” including advertising, social media, branding and coupon/third party that influenced costs beyond the day rate. While the Defendant cited cases excluding Chamberlin, the Court found them factually distinct. Chamberlin’s methodology here was laid out sufficiently to be admissible, though the Defendant could still challenge it on cross-examination. The Court denied excluding Chamberlin overall but reserved in part judgment as to Chamberlin’s use of a multiplier pending further explanation.

    For Thomas Maronick, the Defendant argued his survey had flawed methodology because it did not use the actual promotional materials, omitted Plaintiff Brenda Geiger, and lacked respondent recruitment details. The Defendant asserted the survey was further flawed because respondents could not identify the models and ambiguous terms like “events” and “ads” were used. 

    The Plaintiffs responded that the survey did use Cajun Club’s actual materials and pictures of Geiger. They stated Maronick described the internet panel recruitment method. The Plaintiffs argued any lack of an open-ended name identification question only went to the weight of the survey rather than its admissibility. They contended the terms “events” and “ads” were accurate.

    The Court found Maronick qualified as a marketing expert and professor. It determined he reliably applied this experience in designing the survey, which included Defendant’s materials and Geiger. The Court stated Maronick’s description of using an internet panel for recruitment was sufficient, with the details only going to weight not admissibility. Similarly, the Court found the lack of an open-ended identification and term choices were issues of weight for the jury to consider, not grounds for exclusion. Finally, the Court concluded the survey would assist the jury in determining whether Cajun Club used the pictures in a manner that is likely to cause confusion. For these reasons, the Court denied the motion to exclude Maronick.

    Held

    The Court reserved ruling on remote witness testimony, denied the motion to exclude Chamberlin but reserved in part its ruling on the multiplier issue, and denied the motion to exclude Maronick’s survey methodology.

    The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

    Key Takeaways

    This case demonstrates that courts serve a gatekeeping function in screening expert witness testimony for relevance and reliability under Rule 702 and Daubert. Experts must be qualified, use reliable principles and methods, and provide testimony that assists the trier of fact. However, the admissibility threshold is meant to be liberal, with rigorous cross-examination as the appropriate tool for scrutinizing “shaky but admissible evidence.” 

    For expert Chamberlin, the takeaway is that extensive industry experience may establish qualifications to opine on specialized practices like image valuation. His method of calculating a hypothetical negotiation value based on prior work was deemed sufficiently reliable here considering the hypothetical was only necessary because of Defendant’s violation of copyright law.

    For expert Maronick, the takeaway is that reasonable survey methodology focused on consumer perceptions can assist the trier of fact despite its shortcomings. Specific critiques often go to the weight of survey evidence rather than preclusion.

    Overall, this case illustrates courts’ role in filtering unreliable principles and methods, but permitting testimony where an expert meets basic reliability and assists the trier of fact. Rigorous cross-examination is still vital for scrutinizing weaknesses.