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Lifeguard Licensing Corp. v. ANN Arbor T-Shirt Company, LLC

United States District Court, S.D. New York

July 24, 2017

LIFEGUARD LICENSING CORP., et al., Plaintiffs,
ANN ARBOR T-SHIRT COMPANY, LLC, et al., Defendants.



         In a Memorandum and Order (the “Order”), dated March 7, 2017, Magistrate Judge Francis denied Plaintiffs' and Defendants' cross-motions to preclude each other's experts and their reports. Each of the parties objects to the portion of the Order denying its motion to preclude. For the reasons below, Judge Francis' Order is affirmed.

         I. BACKGROUND

         Plaintiffs, Lifeguard Licensing Corp. and Popularity Products, LLC, assert trademark infringement claims under the Lanham Act, 15 U.S.C. § 1051 et seq. Plaintiffs are respectively the registered owner and licensee of a series of registered word marks, including “Lifeguard” (the “Mark”), which is used on apparel. Defendants asserted genericness, under 15 U.S.C. § 1064(3), as an affirmative defense and counterclaim.

         Defendants Ann Arbor T-Shirt Company, LLC, Jerry Kozak and Richard Winowiecki retained two experts -- Dr. Thomas Maronick and Dr. James Berger -- to design and execute consumer surveys to assess the genericness of Plaintiffs' federally registered trademark “Lifeguard.” Plaintiffs hired Brian M. Sowers to rebut Dr. Maronick's and Dr. Berger's expert reports.

         The Order denies Plaintiffs' motion to preclude Drs. Maronick and Berger, concluding that each is “qualified to offer opinions on the relevant issue” based on his respective education and experience. Judge Francis also found that the alleged flaws in methodology affecting the experts' surveys do not “destroy all of [the surveys'] relevance” and therefore bear only on the weight they are to be afforded at summary judgment or trial.

         The Order also denied Defendants' motion to preclude Mr. Sowers. Judge Francis found that “defendants' complaints about Mr. Sowers' education and experience are overblown, undersupported, or both, ” and that his “reports adequately explain his analyses and conclusions, which is what the Federal Rules of Evidence contemplate.” Judge Francis rejected Defendants' arguments that Mr. Sowers' methodology is unreliable because he lacks an understanding of the concept of primary significance, and that he misidentified the proper survey universe for a genericness survey, because Defendants did not “establish[] that these alleged defects relate to his ‘methodology' or make his reports unreliable.”

         Plaintiffs and Defendants now object to the portions of the Order denying their respective motions to preclude.


         Under 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a), a magistrate judge may adjudicate non-dispositive motions. See also Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). A magistrate judge's order as to a non-dispositive motion may be set aside only where it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); see also Arista Records, 604 F.3d at 116. “An order is clearly erroneous if the reviewing court is ‘left with the definite and firm conviction that a mistake has been committed.'” Frydman v. Verschleiser, No. 14 Civ. 5903, 2017 WL 1155919, at *2 (S.D.N.Y. Mar. 27, 2017) (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Id. (internal quotation marks omitted).

         Federal Rule of Evidence 702 governs the admissibility of expert testimony. The Rule provides that:

[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if [ ] (a) 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; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

         Courts play a “gatekeeping” role within the Rule 702 framework and are “charged with ‘the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.'” Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)). Examination of an expert's analysis should be “rigorous, ” but “[a] minor flaw in an expert's reasoning or a slight modification of an otherwise reliable method will not render an expert's opinion per se inadmissible.” Id. at 267.

         III. ...

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