Deckers Outdoor Corporation v. Last Brand, Inc.

Background

This order concerns motions to exclude expert testimony in Deckers Outdoor Corporation’s trade-dress and patent-infringement case against Last Brand, Inc., doing business as Quince. Deckers sought to exclude testimony identified in the opinion’s substantive discussion as coming from Rob Wallace and Jesse Catlin. Quince sought to exclude testimony from Deckers’s experts Erich Joachimsthaler, Caroline de Baëre, and David Franklyn.

The court applied Federal Rule of Evidence 702, which allows qualified experts to testify when their specialized knowledge would help the factfinder, their opinions are based on sufficient information, and their methods and application of those methods are reliable. The court explained that its role is to screen out unreliable expert opinions, not decide whether an expert is ultimately correct. Problems that affect the weight of testimony generally may be addressed through cross-examination.

Deckers’s Motions

The court denied Deckers’s motion to exclude Rob Wallace’s testimony. Deckers challenged Wallace’s survey because it addressed point-of-sale confusion, used a modified survey format that showed products side by side, and allegedly used the wrong group of survey participants. The court concluded that Deckers had not shown that these issues made the testimony inadmissible. It noted that the parties’ experts agreed consumers may encounter UGG and Quince products near each other online, and that disputes about a survey’s participant group generally affect the testimony’s weight rather than its admissibility.

The court also denied Deckers’s motion to exclude Jesse Catlin’s testimony. Deckers argued that Catlin lacked footwear-industry experience and used improper methods. The court found that Catlin’s education, marketing experience, publications, and consumer-survey experience qualified him to offer the challenged opinions. It also concluded that his expertise in marketing, branding, and consumer behavior could apply to footwear and that the stated shortcomings could be explored through cross-examination.

Quince’s Motions

The court denied Quince’s motion to exclude Erich Joachimsthaler’s testimony. Quince argued that Deckers had not timely disclosed documents used as the foundation for his report, that his methodology was unreliable and speculative, and that he used legal terms in a way that could mislead the jury. The court found the delayed disclosure harmless because the documents were provided before expert rebuttal and Joachimsthaler’s deposition, and Quince did not claim prejudice from the delay. The court also found that the challenged analysis was not so incomplete as to be inadmissible and concluded that Quince had not shown a sufficient risk of jury confusion.

The court granted Quince’s motion in part as to Caroline de Baëre’s testimony. It excluded the portions of her opening report, on pages 40, 53, and 63, that described the three asserted trade dresses as “unique and inherently distinctive.” The court relied on the rule that product-design trade dress cannot be inherently distinctive. The court denied the remainder of Quince’s motion concerning de Baëre’s testimony, including challenges concerning her qualifications, her discussion of celebrity recognition and third-party publicity, references to an inter partes review proceeding, and opinions involving prior art, functionality, and costing analysis.

The court denied Quince’s motion to exclude David Franklyn’s survey testimony. Quince challenged the survey’s participant group because it focused on past or prospective purchasers of certain fur-lined or clog slippers, while the Tasman Trade Dress was not limited in that way. The court held that disputes about the proper survey group generally concern the survey’s value and weight, which the jury can assess at trial, rather than admissibility.

Disposition

The court’s conclusion granted Quince’s motion to exclude the portion of Caroline de Baëre’s testimony describing the asserted trade dresses as “unique and inherently distinctive” and denied the remaining motions. This was an evidentiary ruling about what expert testimony could be presented, not a decision on the parties’ underlying trade-dress or patent-infringement claims.