Trademark Expert Fails Daubert on Squirt Survey

Diverging from standard methodologies may provide the desired results for a report, but it may not pass a Daubert challenge, as this trademark infringement case aptly demonstrates.

In Superior Consulting Services, Inc. v. Shaklee Corp., M.D. Fla. 2018, Superior alleged trademark infringement of its mark "Healthprint" which it had registered with the U.S. Patent and Trademark Office in 2002 and 2005.

To prove infringement, Superior engaged Kirk Martensen, a trademarks expert witness who conducted a survey that found a high likelihood of customer confusion between the two marks.

Shaklee engaged Hal Poret, a legal survey research expert witness who conducted a survey that found a low likelihood of confusion.

Both sides filed Daubert motions challenging the reliability of the opposing experts' surveys and both described their experts' surveys as Squirt formats. (Squirt standards were originally set out in Squirtco v. Seven-Up Co., 628 F.2d 1086, 1089 n.4 (8th Cir. 1980)).

Under the Squirt format, the defendant's and plaintiff's products and marks are placed side by side and questions are asked in order to determine whether there is any confusion in the mind of the survey respondent.

While both surveys were supposed to be in the Squirt format, Justice Gregory Presnell, US District Court for the Middle District of Florida, found the methodologies of the two surveys "extraordinarily different."

Poret's survey included web pages from both Superior's and Shaklee's websites, displayed the Healthprint marks as they appeared on those web pages and included a control group to weed out “noise.” Martensen's survey displayed the word “Healthprint” in plain font, used no marketing materials, described Superior's Healthprint service but not Shaklee's.

Justice Presnell faulted Martensen's survey specifically for:

• failing to present survey respondents with the two Healthprint marks in dispute nor any marketing materials;
• failing to use a control group; and,
• failing to actually describe Shaklee's Healthprint service.

Superior attempted to defend the presentation of only the word “Healthprint” by claiming that most of their customers did not "have their first interaction with Superior's Healthprint mark visually", but the court rejected that argument, finding that "the mere use of the word 'Healthprint' was not a reliable means of depicting the way in which consumers would be exposed to the marks.

The court noted another district court decision that had similarly found a survey deficient for failing to show marks as they appeared in the marketplace and instead displaying only the disputed words, unadorned. (That survey was also conducted by Martensen.)

As for failing to use a control group, Martensen argued that a control group was unnecessary and that he had used a "control question." The court found that survey question "was nothing more than a question with duplicate answer choices" which only served to see whether respondents were paying attention to the question. A control group was necessary to show the cause of confusion and to reduce background “noise” (eg: respondents who agree with most questions because they are bored/hurried).

Martensen also defended his description of Shaklee's Healthprint service, testifying that he believed he had described the Healthprint service of both Superior and Shaklee in one question. The court disagreed, finding that Martensen only described a service which involved performing laboratory tests — a service Shaklee did not provide.

The court found Martensen's survey and his testimony "fatally flawed," excluding his testimony as speculative and unreliable.

While Superior challenged Poret's methodology for using static screenshots of web pages, failing to include its order form in the pages shown and showing disproportionatly more of Shakelee's web pages than Superior's, Justice Presnell rejected those arguments, finding the screenshots reasonable, the lack of the order form harmless and the dispoportinality reasonable since Shaklee's website had more web pages than Superior's.

Justice Presnell granted Shaklee's motion to exclude Martensen and denied Superior's motion to to exclude Poret.

Experts normally have differences in their methodologies, but when they diverge extraordinarily from the standards, the odds of passing a Daubert challenge grow slim.