In this case for trademark / trade dress infringement against Louis Vuitton by LVL XIII, the company of footwear designer Antonio Brown, the defendant submitted survey evidence purporting to demonstrate a lack of secondary meaning as a basis for dismissal of the complaint. This brief supports plaintiff's motion to exclude the survey evidence on various grounds. From the preliminary statement:
"Plaintiff LVL XIII Brands, Inc. submits this memorandum of law in support of its motion under Fed. R. Civ. P. 26 (a)(2)(B) and Fed. R. Evid. 403 and 702 to exclude the survey report of Michael Mazis, Ph.D. proffered by defendants/counterclaimants Louis Vuitton North America, Inc. and Louis Vuitton Malletier, S.A. (collectively, 'Louis Vuitton'). As demonstrated below, the Mazis survey and accompanying report suffer from pervasive and fundamental technical and methodological errors.
"Mazis, for example, failed to survey the relevant universe of consumers, neglecting to make the most obvious inferences about the nature of the product and its placement in the footwear market. Mazis made virtually no effort to depict the trademark as it would be viewed by consumers in real life marketplace conditions. And Mazis conducted a survey meant to prove a lack of secondary meaning of a product well over a year after that product had already been withdrawn from the market because of conduct by the very party that waited until the end of the litigation to commission that survey.
'There is much more, however. The extent of methodological sloppiness underlying the Mazis report is, presumably, the reason why Louis Vuitton improperly withheld from LVL XIII 'the facts or data considered' by Mazis in forming his opinions despite the mandate of Fed. R. Civ. P. 26(a)(2)(B)(ii), as detailed below, and despite LVL XIII’s timely request that Louis Vuitton supplement its expert’s disclosures weeks earlier. On this basis alone, Mazis’s report should be excluded."