Brief in opposition defendant Louis Vuitton's motion to disqualify LVL XIII's expert, fashion law expert Prof. Charles Colman. From the preliminary statement:
"Professor Charles E. Colman does not have an MBA. He never worked at a 'fashion company.' He did not do a survey, review trademark lawyer Erik Pelton’s deposition or read the defendants’ document production in this case. All these facts, stressed by defendants / counterclaimants Louis Vuitton North America, Inc. and Louis Vuitton Malletier, S.A. (collectively, 'Louis Vuitton') in support of their motion to exclude Professor Colman’s expert testimony, are true, but they are all irrelevant. Professor Colman never claimed to have done these things, and neither he nor plaintiff LVL XIII Brands, Inc. maintains that his opinion concerning secondary meaning in this case does or must rest on such credentials, experiences or information.
"Professor Colman’s opinion is based on his extensive training, learning, experience and recognition in the law of intellectual property; the history, business and culture of fashion; and the cultural matrix where these intersect. The fact that his particular mix of scholarship, while recognized in numerous major institutions, nonetheless is not chiseled in granite with the upper-middle-management splendor of 'Marketing Department' is of no moment. In fact, while no Ph.D. is offered in the field of Visual Culture Studies, Professor Colman has the same terminal degree, a Juris Doctorate, as do virtually all lawyers, judges and law professors in service on the finest law faculties in the U.S. today, and a wealth of additional scholarship besides. Recently appointed to a tenure track law faculty position at the University of Hawaii, he is extensively published. Professor Colman’s academic focus has been the business and culture of fashion, from the perspective of one trained in and licensed to practice and indeed appointed to teach law as well as one with the advantage of broad cultural and social sciences studies.
"Hardly any academic preparation could be more germane here. Louis Vuitton’s true objection to his testimony is to what it is, not what it is not. It is a compelling, broad picture, reflecting the breadth of Professor Colman’s scholarship and enunciating the nuances of interaction between culture and couture. Professor Colman’s Report demonstrates, by specific examples to the product in question and the culture that consumes and celebrates it, exactly how secondary meaning was achieved by LVL XIII.
"He does not shy away from arguing that brand impressions – inherent distinctiveness – was achieved because he has a genuine comprehension, based on his extensive scholarship and observations of how fashion sensibility develops in urban subcultures, of how that process works, and how it played out in the case of the LVL XIII luxury sneaker.
"To breadth, Professor Colman adds remarkable depth as well. His Report demonstrates remarkable sensitivity and granularity to specific fashion stimuli and their concomitant human reactions, based on specific examples – detailing the literal thread-and-needle, swatch-and-texture, light-and-shade components of the garments, accessories and people who love them and live by them to show how brand success is built in urban communities. With words and images. Professor Colman’s Report weaves the fabric of LVL XIII’s success by reference to similar fashion phenomena in the same cultural environment. He demonstrates, not with generalities but with a level of precision that only an expert can call forth, how Antonio Brown developed LVL XIII into a street-wear fashion brand that became the perfect object of appropriation by defendants.
"It is not, as defendants claim, that his methodology cannot be replicated. It is that despite the level of detail and transparency in what he has laid out in reaching his opinions, defendants cannot impeach his factual premises, challenge his logic, nor offer retort to his conclusions. What defendants object to is not what Professor Colman does not know, but what he does know, and says."