<b>Expert Witnesses:</b> Exclusion of Expert's Survey Results

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.

To demonstrate a likelihood of consumer confusion, THOIP's expert witness utilized a survey technique in which participants were first shown a THOIP t-shirt, then an array of both Disney and non-related t-shirts. District Judge Shira A. Scheindlin acknowledged: “No survey is perfect and the limits and flaws of a survey generally go to evidentiary weight and do not warrant exclusion. Exclusion may be justified, however, where a single error or the cumulative errors are so serious that the survey is unreliable or insufficiently probative.” Judge Scheindlin also noted: “Where, as here, a trademark action contemplates a jury trial rather than a bench trial, the court should scrutinize survey evidence with particular care.”