Court favors defendant in trademark case

By John Breslin | Jun 17, 2018

Two health-related companies sparring over claims of trademark infringement had differing outcomes regarding expert witness testimony.

ORLANDO – Two health-related companies sparring over claims of trademark infringement had differing outcomes regarding expert witness testimony.

The court documents focused on surveys carried out by the experts, and whether the methods used passed the standard used in federal court for more than two decades.

The plaintiff's expert, Kirk Martensen,  used by Superior, claimed trademark infringement did not exceed the bar set, while one, Hal Poret, put forward by the defendant, Shaklee, did carry out a survey that satisfied the standard.

Both surveys asked whether there was a "likelihood of customer confusion" over the use of a Healthprint mark. Those surveyed by the defendant's expert said the likelihood was low, while the opposing side's said it was high.

Superior, owned and operated by Eleanor Cullen, claims its “primary objective is the early detection of disease, through performing certain laboratory tests, including blood tests, for consumers," the court order filed in the Middle District of Florida in Orlando states.

Cullen registered the Healthprint mark with the U.S. Patent and Trademark Office in 2002 and 2005.

Then in 2016, Shaklee, which manufactures and distributes nutrition supplements, beauty and household-cleaning products, applied for trademark of what court papers describe as a similar Healthprint mark.

Superior alleged trademark infringement under the Florida Deceptive and Unfair Trade Practices Act.  

Following back and forth, both sides filed motions earlier this year to exclude each other's experts.

The court, in its order, briefly summarized the outcome of the case that went to the U.S. Supreme Court, after which the Daubert standard of expert testimony was set.

There are four legs to the standard laid down by the highest court, including whether an expert's methodology has been tested, whether the techniques has been subjected to peer review, and the known and potential error rate.

"After considering Martensen’s report it in its entirety and the testimony presented at the evidentiary hearing, the Court finds that Martensen’s expert testimony is fatally flawed," the order stated.  

Those involved in the survey "believed the Healthprint name and/or service came from a single company." But Martensen did not use a control group in his survey.

Both experts claimed they used the so-called "squirt"survey, which shows those involved in the survey the marks of each company.

However, the court found, the "methodologies of the two surveys are extraordinarily different."

The ruling continued, "Poret’s survey included static images of web pages from both Superior’s and Shaklee’s websites, displayed the two Healthprint marks as they appeared on those web pages, and asked questions to determine whether there was confusion between the two Healthprint marks that could be attributed to the alleged infringement."

Martensen’s survey displayed the word Healthprint in plain font, with no other background material.

"Although Squirt surveys are generally accepted by the courts, the Martensen survey does not comply with the basic tenants of a Squirt survey, and the methodology he used is not reliable," District Judge Gregory Presnell ruled.

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