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Firebirds International, LLC v. Firebird Restaurant Group, LLC

United States District Court, N.D. Texas, Dallas Division

August 21, 2019

FIREBIRDS INTERNATIONAL, LLC, Plaintiff,
v.
FIREBIRD RESTAURANT GROUP, LLC, ET AL., Defendants.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE, UNITED STATES DISTRICT JUDGE.

         Before 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.

         I.

         BACKGROUND

         This is 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.

         FRG is a restaurant management company, owning[1] 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.

         On 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.

         A brief 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.

         The 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.

         Defendants 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 ¶ 20

         Defendants now move to exclude Klein's testimony.

         II.

         LEGAL STANDARD

         Federal 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, ...


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