United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE, UNITED STATES DISTRICT JUDGE.
the Court is Defendants' Motion to Strike the Report and
Opinions of Robert Klein (Doc. 91). Plaintiff commissioned an
expert to design, conduct, and analyze a survey measuring the
likelihood of confusion between the parties because of
Defendants' use of the mark “Firebird.”
Defendant now seeks to exclude the expert's testimony on
the basis that his survey's methodology was so flawed
that it is not reliable or relevant. Because the Court finds
that the survey's deficiencies go to the survey's
weight, not its admissibility, Defendants' Motion (Doc.
91) is DENIED.
a trademark infringement case brought under the Lanham Act
and Texas common law. Plaintiff Firebirds International, LLC
(“Firebirds”) and Defendants Firebird Restaurant
Group (“FRG”), Firebird IP, LLC, and Michael D.
Karns are in the restaurant industry. Plaintiff owns and
operates nearly fifty restaurants, all of which bear the mark
FIREBIRDS®. Doc. 78, Pl.'s App. in Supp. of Mot. for
Summ. J. (“Pl.'s App.”), 1-2 ¶¶ 2
& 5. Plaintiff's restaurants are located throughout
the United States. Id. at 1, ¶ 3. Plaintiff
plans to expand into Texas. Id. at 2, ¶ 4.
a restaurant management company, owning and operating
more than fifty restaurants under six brands: El Fenix
Mexican Restaurant, Snuffer's Restaurant & Bar,
Village Burger Bar, Meso Maya, Taqueria La Ventana, and
TorTaco. Id. at 163, 266. FRG's restaurants are
located in northern Texas and southern Oklahoma. Doc. 1,
Pl.'s Compl., 2 ¶ 6. Plaintiff contends FRG uses
“Firebird” as its “mother brand.”
Doc. 77, Pl.'s Br. in Supp. of Mot. for Summ. J., 8.
October 4, 2017, Firebirds filed this lawsuit, asserting
claims against Defendants for, inter alia, trademark
infringement. See Doc. 1, Compl. Plaintiff retained
as an expert witness Robert Klein, who conducted an Internet
survey purportedly “measur[ing] the likelihood of
confusion between Firebirds and FRG caused by FRG's use
of the mark ‘Firebird.'” Doc. 93-2, Expert
Report of Robert L. Klein (“Klein Report”), 4.
overview of Klein's survey is in order. Klein's
survey was conducted over the Internet. Id. at 5.
Respondents were Texas residents at least 18 years of age who
indicated they are likely to visit a causal restaurant that
serves American or Mexican cuisine in the near future.
Id. Respondents participated in a survey consisting
of three stages. In the first stage, participants were shown
FRG's webpage. Id. at 11; Id. at 8, Ex.
1. (Respondents assigned to the control group were shown an
identical webpage, except every instance of “Firebird
Restaurant Group” was replaced with “Tanager
Restaurant Group.” Id. at 9, Ex. 2.) In the
second stage, participants answered a series of distractor
questions. Id. at 12. In the third and final stage,
participants were shown the webpages for three restaurants,
including Plaintiff's. Id. at 12; Id.
at 13, Ex. 3; Id. at 14, Exs. 4-5. After viewing
each webpage, respondents were asked: “Do you believe
this restaurant is part of the
restaurant group whose webpage you saw in the first section
of this survey or do you believe it is not part
of the restaurant group . . . ?”
Id. at 15. Respondents selected “is part of,
” “is not part of, ” or “Don't
know/Unsure.” Id. Those who answered “is
part of” were prompted to explain, in their own words,
why. Id. Those who answered “is not part
of” or “Don't know/Unsure” were asked:
“Do you believe this restaurant
has a business connection or
affiliation with the restaurant group whose webpage you saw
in the first section of this survey or do you believe it
does not have a business connection
or affiliation with the restaurant group . . . ?”
Id. at 15-16. Respondents selected “has,
” “does not have, ” or “Don't
know/Unsure.” Id. at 16. Those who answered
“has” were prompted to explain, in their own
words, why. Id. Then the survey concluded.
results were collected. In the test group, 78.4% of
respondents indicated they believed Plaintiff was “part
of” FRG or that the companies have a “business
connection or affiliation” with each other.
Id. at 17-18. By contrast, in the control group,
only 21.1% indicated they believed Plaintiff was “part
of” Tanager Restaurant Group or that the two have a
business connection or affiliation with each other.
Id. at 18. Subtracting the two percentages, Klein
obtained a “net confusion” of 57.4%. Id.
retained Dr. Itamar Simonson to respond to the Klein Report.
See Doc. 93-6, Expert Rebuttal Report of Dr. Itamar
Simonson (“Simonson Report”). Simonson's
rebuttal purports to identify several flaws in Klein's
survey, concluding that it was “an artificial exercise
that had nothing to do with reality.” Id. at 8
now move to exclude Klein's testimony.
Rule of Evidence 702 provides for testimony by an expert
witness if: (1) that witness is “qualified as an expert
by knowledge, skill, experience, training, or
education”; (2) “the expert's scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue”; (3) “the testimony is based on sufficient
facts or data”; (4) “the testimony is the product
of reliable principles and methods”; and (5) “the
expert has reliably applied the principles and methods to the
facts of the case.” The “testimony is admissible
only if it is both relevant and reliable.” Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citing
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,