Focus Products Group International, LLC v. Kartri Sales Company, Inc.
- Paul Engelmayer
- 1:15-cv-10154
- U.S. District Court · Southern District of New York
- 6
In Focus Products v. Kartri Sales, Judge Engelmayer overruled defendants’ objections to four plaintiffs’ witness declarations before trial.
The ruling allowed the challenged portions of four plaintiffs’ witness declarations to remain available for consideration at the scheduled bench trial, subject to the court’s stated limitation on one possible legal conclusion. It resolved defendants’ evidentiary objections but did not decide the underlying claims.
What happened
Focus Products Group International, LLC and other plaintiffs sued Kartri Sales Co., Inc. and Marquis Mills International, Inc. in an intellectual-property dispute. Before the scheduled bench trial, the defendants challenged parts of four plaintiffs’ witnesses’ written testimony.
The defendants argued that the testimony lacked a proper foundation, contained hearsay, or was irrelevant. The testimony addressed topics including advertising, consumer perception, product similarity, corporate history, trade dress, and alleged lost sales from infringement.
The court overruled all of the defendants’ objections to the four declarations, although it said it would disregard one statement to the extent it expressed a legal conclusion. Judge Paul A. Engelmayer also did not consider objections to summaries of other witnesses’ deposition testimony because those summaries were not being offered as evidence.
The detailed version
- Focus Products Group International, LLC v. Kartri Sales Company, Inc. · No. 1:15-cv-10154
- Paul Engelmayer
- June 21, 2022
Background
A bench trial was scheduled to begin on June 27, 2022. The order addressed defendants’ objections to the plaintiffs’ direct testimony, submitted by declaration, from Stacy Dubinski, Ryan Erickson, David Kreilein, and Charles Kuehne. The dispute concerns intellectual-property rights, including the HOOKLESS® and EZ ON marks, trade dress, alleged product similarity, consumer confusion, and alleged losses from infringement.
Defendants also objected to summaries of deposition testimony from Lawrence Mayer, Patricia Kubus, and Karen Goskowski. The court did not consider those objections because the summaries were not being offered as evidence and would not have been admissible if offered.
Rulings on the Declarations
The court overruled all of defendants’ objections to Dubinski’s declaration. Dubinski had held leadership positions in marketing, product management, new business development, e-commerce, and channel marketing, including at Sure Fit Home Décor. The court found that her experience and personal knowledge provided a sufficient foundation for testimony about advertising, packaging, consumer perception, purchasing behavior, product similarity, consumer confusion, and the competitive relationship between the parties. The court also found that her opinions about whether the products closely imitated one another, whether two phrases had similar meanings, and whether the products looked alike were within her competence as lay opinions. The court found no inadmissible hearsay in the challenged statements and held that testimony about advertising expenditures was relevant to whether the HOOKLESS® mark had acquired secondary meaning. The court stated that it would disregard Dubinski’s statement about likely consumer confusion to the extent it was understood as offering a legal conclusion rather than a factual opinion.
The court overruled all of defendants’ objections to Erickson’s declaration. Erickson was Hollander Sleep’s vice president of sales and had more than 20 years of experience in product sales and marketing. The court found a proper foundation for his testimony about advertising practices, product similarities, the retail and hospitality markets, consumer perceptions and purchasing behavior, concerns about confusion between marks, the scope of the trade-dress claim, and competing trade dresses. The court also found that the challenged statements did not contain out-of-court statements offered for their truth. It held that testimony about advertising rebates, consumer loyalty, goodwill, and the scope of the plaintiffs’ trade dress was relevant.
The court overruled all of defendants’ objections to Kreilein’s declaration. Kreilein was Focus’s former executive vice president. The court found that his position at the relevant times gave him personal knowledge of Focus’s name change, related corporate documents, SF Home Décor’s incorporation and principal place of business, the sale of Sure Fit Home Décor LLC to SF Home Décor LLC, and an earlier dispute involving the EZ-ON trademark and trade dress. The court found no hearsay in the challenged paragraphs and held that evidence about the plaintiffs’ names, corporate structures, ownership, and asset transfers was relevant.
The court overruled all of defendants’ objections to Kuehne’s declaration. Kuehne was Focus’s former chief financial officer. The court found that his position gave him a sufficient foundation to testify about Focus’s and Sure Fit’s manufacturing and marketing capabilities and their ability to meet orders allegedly lost because of defendants’ infringement. The court also found that his lay opinion about lost sales was within his knowledge, while noting that other factors would likely matter when assessing how much any sales reduction was attributable to infringement. The court found no hearsay in the challenged statements.
Disposition
The order overruled defendants’ objections to the four plaintiffs’ declarations. It did not decide the underlying infringement or other intellectual-property claims. Judge Paul A. Engelmayer signed the order on June 21, 2022.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.