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<b>Expert Witnesses:</b> Exclusion of Expert's Survey Results
Exclusion of Expert's Survey Results. The entertainment industry is awash with the exploitation of merchandise products. Experts use different methodologies to prove or disprove allegations of similarities between goods. In a trademark dispute over merchandise apparel sales, the U.S. District Court for the Southern District of New York excluded a plaintiff's expert's report that relied on a “sequential array” survey method to try to show that the defendants' merchandise created a likelihood of consumer confusion. THOIP v. The Walt Disney Co., 08 Civ. 6823(SAS).
THOIP filed an infringement suit under '43(a) of the Lanham Act to protect the company's claimed unregistered trademark rights in “Little Miss,” which THOIP used ' in a series of children's books, TV shows and videos ' in conjunction with a character-trait term (e.g., “Little Miss Bossy”) and individualized cartoon characters for each trait. THOIP also licensed the “Little Miss” characters for merchandise, including t-shirts. THOIP challenged Disney's sale of a line of “Little Miss Disney” and “Miss Disney” t-shirts that also featured trait words and cartoon characters (e.g., “Little Miss Bossy” with a Daisy Duck image). Both parties' t-shirt lines were sold in stores of close proximity, though Disney's distribution was much more limited.
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