From the Preliminary Statement:
"Attempting illegitimately to supplement their summary judgment briefing, defendants Louis Vuitton Malletier SA and Louis Vuitton North America, Inc. (collectively, “Louis Vuitton” or “defendants”) have submitted a so-called “motion to strike certain of LVL XIII’s submissions relating to parties’ cross-motions for summary judgment.” This essentially amounts to a unilateral grant by defendants to themselves of 18 pages of argumentation attacking plaintiff’s summary judgment submissions under the guise of a “motion to strike” – a procedural device not provided for under the Federal Rules of Civil Procedure except in connection with pleadings, and even then utilized only sparingly.
"Defendants have also awarded themselves this extra round of motion practice for another attempt, this time from another angle, to attack the testimony of Erik Pelton, plaintiff’s trademark prosecution counsel. Mr. Pelton was highly effective at countering misguided questioning by Louis Vuitton concerning both his practice and PTO procedure as it applied to the facts of this case at his deposition, and demonstrated the extent of defendants’ continuing misapprehension of his answers in the declaration he submitted in the summary judgment briefing. Defendants now double down and insist that if Mr. Pelton is so certain that he knew what he was doing, and why, when he prosecuted LVL XIII’s trademark applications, he must be “an expert witness” and his testimony should therefore be stricken.
"This is a non-sequitur, as demonstrated below. Mr. Pelton merely testified, and continues to do so, based on his factual recollection and comprehension of the trademark prosecution work he performed for plaintiff. That this factual circumstance implicated deep expertise does not make him an expert witness because LVL XIII does not offer him as one. The mere fact that Louis Vuitton does not like what Mr. Pelton has to say – because it is correct – is a testament to his expertise, but it does not change his status as a fact witness, or make defendants’ motion meritorious."