Reflex Media, Inc. v. SuccessfulMatch.com

Background

This trademark dispute concerns marks asserted by Clover8 Investments and Reflex Media, Inc., which the opinion collectively calls “RMI.” SuccessfulMatch.com and Successful Match Canada, collectively “Successful Match,” sought cancellation of the registrations on the ground that the marks were generic. The opinion describes the services as involving online or app-based “Sugar Daddy” and “Sugar Baby” relationships.

Successful Match retained Hal Poret, and RMI retained Brian Sowers, to conduct consumer surveys addressing whether the disputed marks were generic. Each side moved under Federal Rule of Evidence 702 and the standard from Daubert v. Merrell Dow Pharmaceuticals, Inc. to exclude the other expert’s opinions.

Court’s Analysis

Rule 702 permits expert testimony when the proponent shows, among other things, that the testimony is relevant, rests on reliable principles and methods, and reliably applies those methods to the facts. Under the Daubert standard, the court serves as a gatekeeper for expert evidence, but disputes about survey design, methodology, and the strength of an expert’s conclusions generally affect the evidence’s weight rather than its admissibility.

The court focused first on the proper “survey universe,” meaning the group of people whose perceptions are relevant. The parties disagreed about whether the surveys should include consumers of online dating and matchmaking services generally or only consumers of “luxury” or “sugar dating” services. Because the parties also disagreed about the nature of RMI’s services, the court could not conclude that either expert surveyed a group whose views were irrelevant. The court therefore treated the disagreement as an issue for the factfinder and cross-examination.

The court also rejected challenges to the surveys’ preliminary “mini-tests,” which taught respondents to distinguish brand terms from generic terms before the main survey. The court found that objections to the particular words used in Sowers’s mini-test concerned survey design, not a failure to use accepted principles. It also found that Poret’s instructions adequately explained the distinction between brand and common terms and that Sowers did not show that the wording confused respondents. The court rejected the remaining challenges, including objections to using “term” instead of “name,” Poret’s choice of control terms, and Successful Match’s argument that Sowers’s survey addressed secondary meaning rather than genericness.

Disposition

The court denied RMI’s motion to exclude the opinions of Hal Poret and denied Successful Match’s motion to exclude the opinions of Brian Sowers. The court concluded that both experts’ opinions were based on reliable principles and methods that they reliably applied. Disputes about the approaches—especially the definition of the survey universe—were left for evaluation at trial through cross-examination and consideration of the evidence’s weight.