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  • Marketing Expert Witness’ Testimony on Consumer Perceptions Excluded Because His Survey is Flawed

    Marketing Expert Witness’ Testimony on Consumer Perceptions Excluded Because His Survey is Flawed

    Plaintiff Multiple Energy Technologies, LLC (“MET”) accused Under Armour of false advertising in relation to certain products that contain bioceramic powder. MET contended that Under Armour inaccurately claimed that the Federal Food and Drug Administration had determined that those products enhanced recovery.

    Under Armour sells activewear and sleepwear products directly to consumers. This includes the sale of products containing a competing bioceramic product known as Celliant, which is manufactured by Hologenix, LLC (“Hologenix”). Under Armour advertises these products separately from their other product offers and as helping to promote recovery, especially for athletes.

    Plaintiff MET brought four claims against Defendant Under Armour, Inc.: violation of the Lanham Act, violation of the Sherman Act, misappropriation of trade secrets; breach of non-disclosure agreement; tortious interference with contract; tortious interference with prospective business expectancies; unjust enrichment; unfair competition; conversion; a claim for an accounting; and a claim for injunctive relief.

    MET retained Dr. Thomas J. Maronick, a survey expert who designed “a two-part online consumer study to determine consumers’ perceptions of claims Under Armour [made] about Celliant on the landing pages of its website.” Maronick stated that, under well-established survey principles, “each of the two parts of the survey had a Test Group and a Control Group[.]”

    Under Armour filed a motion to exclude the expert report of Thomas J. Maronick.

    Marketing Expert Witness

    Thomas J. Maronick is an Emeritus Professor of Marketing in the School of Business and Economics at Towson University in Towson, Maryland. His educational background includes a BA in Philosophy from St. Thomas Seminary, an MSBA from the University of Denver with a major in Marketing, a Doctorate in Business Administration (“DBA”) from the University of Kentucky with a major in Marketing, and a JD from the University of Baltimore, School of Law. He is an inactive member of the Maryland Bar.

    At Towson University, he taught undergraduate and graduate courses in strategic marketing, consumer behavior, and marketing research. He has also taught graduate and executive development courses in strategic marketing and marketing research at several universities in the Baltimore and Washington, D.C., areas.

    His professional background includes serving as the Director of Impact Evaluation in the Bureau of Consumer Protection at the Federal Trade Commission (“FTC”) from 1980 to 1997. In that capacity, he was the in-house marketing expert for all divisions of the Bureau, advising attorneys and senior management on marketing aspects of cases being considered or undertaken by Commission attorneys.

    Get the full story on challenges to Thomas J. Maronick ‘s expert opinions and testimony with an in-depth Challenge Study. 

    Discussion by the Court

    In Survey 1, the test group was shown actual Under Armour landing pages, one of which contained the statement, “Products powered by Celliant have been determined by the FDA to increase localized circulation, leading to faster recovery[.]” The control group was presented with landing pages that contained the statement, “The FDA has not made a determination about whether products powered by Celliant increase localized circulation leading to faster recovery.” The images accompanying these pages were different—the test group saw an image of a woman wearing a jacket, and the control group saw an image of two men wearing jackets. 

    In Survey 2, the test group was shown an image of a woman wearing shorts with the statement, “Products powered by Celliant have been determined by the FDA to increase localized circulation leading to faster recovery.” Id. at 15. The control group was shown an image of a man wearing a short-sleeved shirt with the language “POWERED BY REDWAVE. Not intended for use as a medical device.”  At Maronick’s deposition, he recharacterized his opinion related to Survey 2 by stating that it was not a test/control survey.

    Maronick’s Testimony

    Maronick concluded based on his two surveys that “Under Armour’s claims about increased circulation and faster recovery are Important or Very Important in consumers’ decision to buy Under Armour products with either Celliant or Redwave fabric.”

    Maronick identified three important findings from his surveys:

    (1) “a statistically higher percentage of respondents seeing the Under Armour webpage claiming that products ‘Powered by Celliant have been determined by the FDA to increase localized circulation, leading to faster recovery’ believe the Under Armour products will provide the increased circulation and faster recovery benefits claimed than do respondents who saw language that ‘the FDA had not made a determination whether products made with Celliant increase circulation and lead to faster recovery’”

    (2) “a statistically higher percentage of respondents seeing Under Armour’s claims made in its webpages for its sleep ware products that the products ‘Powered by Celliant have been determined to increase localized circulation, leading to faster recovery’ believe they will achieve those benefits than do respondents for Under Armour products seeing claims that the Under Armour products that are ‘Powered by Redwave’ and ‘are not intended for use as a medical device’”

    (3) “in both Study 1 and Study 2, Under Armour’s claims about increased circulation and faster recovery are Important or Very Important in consumers’ decision to buy Under Armour products with either Celliant or Redwave fabric.” 

    1. Survey 1

    Parties’ Position

    As to Survey 1, first, Under Armour argued that Maronick’s survey is flawed because there are material differences in the control image and the test image.

    In Maronick’s survey, the images he used for the control and test groups were very different, with one image showing a woman, and the other image showing two men wearing the product. The two images also included different language that had no bearing on the “FDA determined” language and placed the FDA language in different places on the images. 

    Second, Under Armour argued that the language Maronick used for the control group was a negative statement of the product rather than testing for the absence of the FDA language, which is the proper procedure for test/control surveys. 

    Third, Under Armour argued Maronick misled survey respondents by using different control language in two different questions that were supposed to use the same control language.

    Fourth, Under Armour argued Maronick failed to follow basic rules of survey bias by: (1) failing to rotate multiple choice answers for the survey respondents to guard against order bias; (2) failing to take non-response factors into account; (3) using leading questions and thus failing to guard against demand effects; and (4) failing to describe the target population.

    In response, MET argued that the flaws in Maronick’s study go to the weight, and not the admissibility of his opinions. 

    Analysis

    A proper control should be as similar to the experimental stimulus as possible, because if there are multiple differences between them, it may be impossible to determine which of those differences caused any disparity between the respondents’ reactions to them. An improper control undermines the reliability of a survey because the lack of a proper control makes it difficult to assess responses.

    The Court held that the control was improper because the test group saw an image of a woman wearing a jacket, and the control group saw an image of two men wearing jackets.  In addition to the different images, Maronick also improperly showed the test group language that was not shown to the control group. The test group image included the phrase “ALL DAY ALL NIGHT – ” and ” – RECOVERY[,]” but the control group image did not. The Court held this to be a material difference, as the test group was shown additional recovery-promoting language that could have reinforced or emphasized the FDA’s determination. 

    The Court added that Maronick’s approach to the language used in the control and test groups was also flawed because rather than excluding the “FDA determined” language, he improperly made it a negative claim—”the FDA has not made a determination . . . .” 

    Beyond the control issues, at least three of the other flaws Under Armour identified supported exclusion. The Court found that Manorick failed to rotate answers, did not take into account non-response and did not identify the target population.

    While these issues with the control and test groups may not warrant exclusion on their own, they weigh in favor of exclusion when viewed in combination with the other flaws in the survey.

    2. Survey 2

    As to Survey 2, first, Under Armour stated that Maronick admitted that this survey is not a “test/control” survey as he states in his expert report, but was instead two separate consumer perception surveys. Under Armour argued that because of this, any of Maronick’s report and testimony that relate to Survey 2 should be excluded because experts cannot recharacterize or alter their opinions in a deposition.  Second, Under Armour argued that even if Survey 2 were two separate consumer perception surveys, Maronick’s opinions on Survey 2 are still inadmissible because: (1) it was not a test/control survey, so Survey 2 “is not a survey capable of measuring any causal impact of any particular language[;]” and (2) the two purported surveys do not “fit” the case. 

    In response, MET argued that Survey 2 was a consumer perception survey, not a test/control survey, so it should not be excluded because a control group is not necessary when the survey is not seeking to show causality.

    It is noteworthy that Maronick claimed in his expert report that Survey 2 was a test/control survey. But at his deposition, he abandoned this opinion. Additionally, even if Survey 2 were still valid without a control, Maronick improperly drew the respondents’ attention to the language in question by drawing a box around the language and asking the respondents “What does the highlighted statement say or suggest about this product?”

    Even if the Court were to accept Manorick’s purported explanation that Survey 2 was really two separate surveys, then each of those surveys also lack a control, which is a “fatal flaw[.]”

    Held

    The Court granted Under Armour’s motion to exclude Dr. Thomas J. Maronick’s expert report.

    Key Takeaways:

    • Survey 1 contained certain flaws that, standing alone, may have been technical and pertained more to the weight of the evidence. However, the distinction between weight and admissibility is sometimes a matter of degree. The Court concludes that the flaws in Survey 1 are of such a degree that they cumulatively render Maronick’s opinion unreliable under Rule 702. 
    • Maronick’s testimony and report on consumer perceptions of Under Armour’s claims do not pass muster under Rule 702.

    Case Details:

    Case Caption: Multiple Energy Technologies, Llc V. Under Armour, Inc
    Docket Number: 2:20cv664
    Court: United States District Court, Pennsylvania Western
    Order Date: December 23, 2024
  • Court Bars Intellectual Property Expert Witness for Opining on Straightforward Matters of Law

    Court Bars Intellectual Property Expert Witness for Opining on Straightforward Matters of Law

    A district judge in New York held that the report of a intellectual property expert witness spoke to straightforward areas of the law where juries did not require assistance.

    Plaintiff Medical Depot, Inc. and Defendant Med Way US, Inc.  are both manufacturers of medical products, including specially designed medical air mattresses. Medical Depot, Inc. began selling various air mattress models using the descriptors “Med-Aire” and “Med Aire” in 2007. Plaintiff contended that its use of the terms “Med-Aire” and “Med Aire” since 2007 was substantial enough to merit trademark protections, while Defendant argued the opposite.

    Defendant alleged that it began selling air mattress medical products using the name “MEDAIR” as early as April 1, 2019. On December 10, 2019, Defendant filed United States Trademark Application Ser. No. 88/721,827, which matured into Registration No. 6,116,976, which covered use of the MEDAIR mark for International Class 10 medical products, namely “air mattresses with pump, for medical purposes.”

    Plaintiff argued that Defendant’s use of the MEDAIR mark infringed on Plaintiff’s unregistered “Med-Aire” mark, which Plaintiff argues had gained trademark protection despite its lack of registration with the USPTO. Plaintiff also brought claims for unfair competition and the cancellation of Registration No. 6,116,976. 

    Motion to exclude

    During the course of this action, Plaintiff retained Jeremy N. Sheff to produce the Sheff Report and to provide testimony in regard to the subject matter of the Sheff Report if called to do so during pretrial proceedings. 

    The Sheff Report purported to opine as to three issues:

    • The first is whether [Medical Depot]’s marketing and sales of products under its claimed MED-AIRE trademark establish “use in commerce” under the Lanham Act sufficient to establish priority of right as of July 13, 2018. This is the date currently claimed by Defendant Med Way US, Inc. (“Med Way”) as the date of its first use in commerce of the mark MEDAIR, used on or in connection with the goods and services “air mattresses with pump, for medical purposes” in International Class 10, which is the subject of United States Patent and Trademark Office (USPTO) Trademark Registration No. 6,116,976, Serial No. 88/721,827 (“the ‘976 Registration”).
    • The second is whether the use by [Medical Depot] of its claimed MED-AIRE trademark on its products and associated sales materials constitutes “use as a mark” or “trademark use” under the Lanham Act as interpreted by the federal courts and the USPTO.
    • The third is whether alternative presentations of [Medical Depot]’s claimed MEDAIRE trademark both with and without a hyphen and with or without an intervening space defeat its claim to priority.

    Defendant argued that the Sheff Report is “a legal brief masquerading as an expert report” and moved to exclude the same. Plaintiff argued that any exclusions made to Sheff’s report or testimony should correspondingly apply to Defendant’s expert, Francis Duffin. 

    Intellectual Property Expert Witnesses

    Jeremy N. Sheff is a tenured Professor of Law at St. John’s University School of Law, where he also serves as the Founding Faculty Director of the St. John’s Intellectual Property Law Center. Sheff has taught Trademark Law and other courses at St. John’s University School of Law since 2008. He conducted doctrinal, theoretical, and empirical research on intellectual property law, with a particular focus on trademark law.

    Get the full story on challenges to Jeremy N. Sheff’s expert opinions and testimony with an in-depth Challenge Study.

    Francis Duffin is a Partner in the Corporate Department and Chair of the Trademark Practice Group at Wiggin and Dana LLP. He has extensive experience in domestic and international trademark law and in trade name and domain name matters, stemming from his foundation as a Trademark Examining Attorney with the U.S. Patent and Trademark Office.

    Fortify your strategy by reviewing a Challenge Study detailing grounds for excluding Francis Duffin’s expert testimony. 

    Discussion by the Court

    The Sheff Report

    Defendant challenged only those portions of the Sheff Report and related testimony that: “(a) opine on what constitutes the relevant law and the significance of such law, (b) apply such supposed relevant law to the facts, (c) proffer legal opinions, (d) propound legal conclusions, and (e) offer expert testimony directed to the matters of consumer psychology, marketing, and the commercial impression purportedly created by the Med-Aire phrase on the relevant consuming public of medical air mattress products.”

    Med Way US, Inc. characterized those categories of disputed topics as encompassing the entirety of the Sheff Report—noting, for example, that “Sheff admitted at the outset of his report that he was retained solely to opine on the ultimate legal issues in this case”—rendering the Defendant’s challenge as one against the Sheff Report as a whole.

    The Defendant argued that Sheff usurped the role of the factfinder and of the Court in his expert report because his testimony as an expert on trademark usage under the Lanham Act concerned a subject that “juries (and factfinders) simply do not require expert assistance to competently assess.” The Defendant contended that the Sheff Report spoke to straightforward areas of the law where juries did not require assistance.

    The Court, citing Highland Capital Management, L.P. v. Schneider, 551 F. Supp. 2d 173, 181 (S.D.N.Y. 2008), held that the Sheff Report’s subject matter—use in commerce, trademark usage, and the issue of alternate presentations—were straightforward matters of law that a jury can ably decide without the assistance of an expert.

    In other words, the Court excluded the Sheff report because it solely concerned “matters which a jury is capable of understanding and deciding without the expert’s help.”

    Sheff’s Testimony

    Defendants argued that, in addition to barring the Sheff Report, the Court should preclude Sheff from testifying as to the same questions raised in the Sheff Report. Because the Court found that the subject matter of the Sheff Report solely concerned “lay matters which a jury is capable of understanding and deciding without the expert’s help,” the Court correspondingly found that Sheff may not testify to the same issues raised in the Sheff Report at trial.

    The Duffin Report

    Plaintiff argued that if the Court excludes Sheff’s testimony and the Sheff Report, the Court should also exclude the corresponding testimony by Defendant’s rebuttal expert, Francis Duffin (“Duffin”). Duffin’s testimony was offered solely to rebut Sheff’s testimony.

    Defendant contended in response that the Court should preclude Plaintiff from seeking exclusion of the Duffin Report because Plaintiff first raised this argument in its opposition papers and failed to file a motion in limine to exclude the report by the Court’s November 2, 2023 deadline.

    Federal Rule of Civil Procedure 26 defines rebuttal expert testimony as testimony ‘intended solely to contradict or rebut evidence on the same subject matter identified [in the expert testimony offered] by another party.’ ‘[T]he [rebuttal] expert’s testimony should be to ‘explain, repel, counteract or disprove evidence’ presented by the expert to whom he or she is responding.

    The Court held that Duffin’s rebuttal report “must also be excluded as irrelevant,” as its sole relevance at trial was to rebut now-excluded expert testimony. That Plaintiff did not file a motion in limine to exclude the Duffin Report does not change this outcome.

    Held

    The Court excluded the Sheff Report and any testimony by Sheff at trial concerning the subject matters of the Sheff Report. In light of the exclusion of the Sheff Report and related testimony, the Duffin Report is likewise excluded as irrelevant.

    Key Takeaways:

    • While the expert can make factual conclusions that embrace an ultimate issue that the fact-finder is yet to decide, the expert cannot give testimony stating ultimate legal conclusions.
    • An untrained layman is perfectly qualified to assess the strength or distinctiveness of a mark and/or the likelihood of consumer confusion, both of which the Court evaluates from the perspective of the consuming public.
    • Defendant hired rebuttal expert Francis Duffin to explain, repel, counteract or disprove evidence’ presented by Jeremy Sheff. In other words, Duffin Report would have no basis for admission without Sheff.

    Case Details:

    Case Caption: Medical Depot, Inc. V. Med Way Us, Inc.
    Docket Number: 2:22cv1272
    Court: United States District Court, New York Eastern
    Order Date:  April 26, 2024