National Presto Industries, Inc. v. U.S. Merchants Financial Group, Inc.

Background

National Presto Industries, Inc. (Presto) sued U.S. Merchants Financial Group, Inc., doing business as Greenmade, alleging, among other things, infringement of Presto’s trade-dress rights in its HeatDish product. Before trial, U.S. Merchants asked the court to exclude several groups of Presto’s exhibits: photographs of returned heaters and packaging, emails from alleged consumers, and photographs of Costco receipts.

The evidence was offered to support Presto’s position that actual consumer confusion existed. The court had previously considered similar evidence when denying U.S. Merchants’ motion for summary judgment, but had noted that the evidence had limited value because Presto had not followed up with Costco employees or consumers to determine whether anyone was actually confused.

Photographs: Exhibits 75A through 75O

The court denied the motion to exclude the photographs. It had already ruled that written statements from third parties appearing in the photographs were inadmissible hearsay, meaning out-of-court statements offered for the truth of what they assert. Presto was therefore required to provide versions with those statements removed.

After redaction, the court held that the photographs were images rather than statements and were not hearsay. It also rejected the argument that the photographs violated the best-evidence rule, which generally concerns proving the contents of an original. Although the physical products had not been produced, the court found that the photographs reliably showed the heaters and boxes. The court acknowledged that the photographs represented only 16 returns out of approximately 10,000 yearly returns and provided little insight into whether Costco employees were confused, but concluded that they still had some, though very limited, value.

Emails: Exhibits 77, 78, 79, 80, 81, 336, 337, 338, 339, and 340

The court granted the motion to exclude the emails. It found that the emails were particularly unreliable hearsay concerning alleged confusion. Colleen Hawkins testified that customer-service representatives had forwarded the emails to her, but she did not know the senders’ identities or whether their statements were truthful. She also testified that no one had followed up with the alleged consumers and that she could not verify some photographs included with the emails.

The court rejected Presto’s arguments that the emails qualified as business records or as statements describing a person’s then-existing state of mind. The court found that the emails instead recounted facts, offered commentary, or asked questions, and that the consumer statements had not been verified. The court therefore did not receive these exhibits into evidence.

Costco receipts: Exhibit 290

The court denied the motion to exclude Exhibit 290. It granted the motion only as to third-party writing on the Costco receipt identified by Bates label NP 0000054 and ordered Presto to file a version with that writing removed.

As redacted, the court held that the receipt copies were admissible duplicates. No genuine question had been raised about the originals’ authenticity, and the circumstances did not make use of the copies unfair. The court also noted that Costco’s corporate representative identified the documents as Costco receipts.

Order

Judge Susan Richard Nelson ordered that the motion concerning Exhibits 75A through 75O was DENIED; the motion concerning Exhibits 77, 78, 79, 80, 81, 336, 337, 338, 339, and 340 was GRANTED; and the motion concerning Exhibit 290 was DENIED.