Water Pik, Inc. v. Med-Systems, Inc.

Filing 209

ORDER. The parties shall submit supplemental briefs discussing the Lynx report's effect on the admissibility of Dr. Ford's survey. The briefs shall be no longer than ten pages and shall be submitted by 1/11/2012. By Judge Philip A. Brimmer on 1/5/12. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-01221-PAB-CBS
WATER PIK, INC., a Delaware corporation,
Plaintiff,
v.
MED-SYSTEMS, INC., a Washington corporation,
Defendant.

ORDER

Plaintiff Water Pik, Inc. (“Water Pik”) brought this declaratory judgment action
against defendant Med-Systems, Inc. (“Med-Systems”) after Med-Systems opposed the
registration of Water Pik’s SinuSense™ mark in the Trademark Trial and Appeals
Board (“TTAB”). Water Pik seeks a declaratory judgment finding that the SinuSense™
mark does not: (1) infringe the SinuCleanse® mark; (2) infringe SinuCleanse®’s trade
dress; and (3) dilute the SinuCleanse® mark. Docket No. 117 at 4. Additionally, Water
Pik seeks a declaratory judgment finding that Water Pik has the right to register and
use the SinuSense™ mark. Id. In response, Med-Systems alleges counterclaims
against Water Pik for: (1) trademark infringement under the Lanham Act,
15 U.S.C. § 1114; (2) trade dress infringement; (3) unfair competition; and (4)
trademark dilution. Id. at 7.
This matter is presently before the Court on Med-Systems’ Motion in Limine to
Exclude Water Pik’s Consumer Confusion Expert Gary T. Ford [Docket No. 167]. Med-

Systems seeks to exclude the testimony of Dr. Gary T. Ford (“Dr. Ford”) in its entirety
pursuant to Rules 702, 703, 402, and 403 of the Federal Rules of Evidence. Docket
No. 167 at 1. The motion is fully briefed and ripe for disposition.
I. FEDERAL RULE OF EVIDENCE 702
Federal Rule of Evidence 702 provides that:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if: (a)
the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue; (b) the
testimony is based on sufficient facts or data; (c) the testimony is the product
of reliable principles and methods; and (d) the expert has reliably applied the
principles and methods to the facts of the case.
Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an
expert be qualified based upon knowledge, skill, experience, training, or education to
give opinions in a particular subject area. Rather, the Court must “perform[] a two-step
analysis.” 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006).
After determining whether the expert is qualified, the specific proffered opinions must
be assessed for reliability. See id.; Fed. R. Evid. 702 (requiring that the testimony be
“based on sufficient facts or data,” be the “product of reliable principles and methods,”
and reflect a reliable application of “the principles and methods to the facts of the
case”).
Rule 702 imposes on the district court a “gatekeeper function to ‘ensure that any
and all scientific testimony or evidence admitted is not only relevant, but reliable.’”
United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). To execute that

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function, the Court must “assess the reasoning and methodology underlying the
expert’s opinion, and determine whether it is both scientifically valid and applicable to a
particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003)
(citing Daubert, 509 U.S. at 592-93). When assessing reliability, “the court may
consider several nondispositive factors: (1) whether the proffered theory can and has
been tested; (2) whether the theory has been subject to peer review; (3) the known or
potential rate of error; and (4) the general acceptance of a methodology in the relevant
scientific community.” 103 Investors I, 470 F.3d at 990 (citing Daubert, 509 U.S. at
593-94). These considerations are not exhaustive. Rather, “the trial judge must have
considerable leeway in deciding in a particular case how to go about determining
whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.” Kumho Tire Co., 526 U.S. at 152.
While the proponents of the challenged testimony have the burden of
establishing admissibility, their proffer is tested against the standard of reliability, not
correctness; they need only prove that “the witness has sufficient expertise to choose
and apply a methodology, that the methodology applied was reliable, that sufficient
facts and data as required by the methodology were used and that the methodology
was otherwise reliably applied.” United States v. Crabbe, 556 F. Supp. 2d 1217, 1221
(D. Colo. 2008).

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In sum, expert testimony must be excluded if the expert is unqualified to render
an opinion of the type proffered, if the opinion is unreliable, if the opinion will not assist
the trier of fact, or if the opinion is irrelevant to a material issue in the case.
II. PLAINTIFF’S EXPERT – DR. GARY T. FORD
Water Pik retained Dr. Ford to conduct a survey examining the likelihood of
confusion between SinuSense™ and SinuCleanse®. Docket No. 193 at 2. In order to
determine the likelihood of confusion, Dr. Ford performed a mall intercept survey in
sixteen different malls around the country. Docket No. 167-1 at 5. Dr. Ford compiled a
sample for the survey designed to reflect the demographics in a market research study
performed in 2009 by Lynx Research Consulting. Id. The survey sample was
comprised of male and female respondents between 18 and 64 years of age who had
used a neti pot in the past six months for seasonal nasal allergy or sinusitis and were
likely to purchase a replacement neti pot in the next six months. Id. The respondents
were randomly assigned into two groups, with the first group exposed to the
SinuSense™ mark and the second (control) group exposed to NeilMed’s NasaFlo® neti
pot.1 After initial screening questions, consumers were asked the following four
questions:
1.

If you have an opinion, what company makes or puts out this product?

2.

If you have an opinion, do you or do you not think that the company that
makes or puts out this product makes any other brand or brands of neti
pots?

1

NeilMed’s NasaFlo® is one of the leading products in the sinus irrigation
market. Docket No. 167-2 at 20.
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3.

If you have an opinion, do you or do you not think that the company that
makes or puts out this product is connected or associated with any other
company or companies?

4.

If you have an opinion, do you or do you not think that the company that
makes or puts out this product has authorization or permission from any
other company or companies.

Docket No. 193 at 2.
The results of the survey showed that only one of the 164 respondents in the first
group (0.6%) believed that SinuSense™ had an association or connection with
SinuCleanse®. Docket No. 167-1 at 17. Dr. Ford determined that a 0.6% likelihood of
confusion was not statistically significant. Id. Based on the survey results, Dr. Ford
opined that “there is no confusion nor is there any likelihood of confusion between the
SinuSense™ and SinuCleanse® marks or trade dress.” Id.
Med-Systems challenges the admissibility of Dr. Ford’s survey results and
opinions. Specifically, Med-Systems asserts that Dr. Ford’s survey is fundamentally
flawed because: (1) it failed to test the universe2 of consumers who are most likely to
buy Water Pik’s goods; (2) the chosen sample was not a fair sampling of the target
universe; and (3) the questions posed could not adequately determine the likelihood of
confusion between the two marks. Docket No. 167 at 2. According to Med-Systems,
these errors render Dr. Ford’s survey and conclusions inadmissible. Id.3

2

A survey “universe” is that segment of the population whose perceptions and
state of mind are relevant to the issues in a particular case. See Citizens Fin. Grp., Inc.
v. Citizens Nat’l Bank of Evans City, 383 F.3d 110, 118-19 (3rd Cir. 2004).
3

Med-Systems does not challenge Dr. Ford’s qualifications either to conduct
such a survey or to form opinions based on this type of survey. See Docket No. 167.
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III. ANALYSIS
A. Survey Evidence
Parties to trademark infringement actions may use consumer surveys to
demonstrate or refute a likelihood of consumer confusion. Sally Beauty Co., Inc. v.
Beautyco, Inc., 304 F.3d 964, 974 (10th Cir. 2002). A survey’s evidentiary value
depends on the methodology used and the questions presented to respondents. King
of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir. 1999).
“[T]he closer the survey methods mirror the situation in which the ordinary person would
encounter the trademark, the greater the evidentiary weight of the survey results.” 6 J.
THOMAS MC CARTHY, MC CARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 32:163 at
32-333 (4th ed. 2011) (hereinafter MC CARTHY).4 Daubert underscores the trial court’s
responsibility to ensure that scientific or technical evidence is both reliable and relevant.
Daubert, 509 U.S. at 589.
To assess the validity and reliability of a survey, a court should consider a
number of criteria, including whether: (1) the universe was properly chosen and defined;
(2) the sample was representative of that universe; (3) the survey’s methodology and
execution were in accordance with generally accepted principles; (4) the questions were
leading or suggestive; and (5) the data was accurately gathered and reported. See
MC CARTHY § 32:159. Technical and methodological deficiencies in the survey,
including the sufficiency of the universe sampled, bear on the weight of the evidence,

4

Both parties cite to MC CARTHY in support of their respective arguments.
Therefore, the Court will assume that McCarthy’s survey methodology is generally
accepted within the relevant field.
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not the survey’s admissibility. Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 523
(10th Cir. 1987). However, “when the deficiencies are so substantial as to render the
survey’s conclusions untrustworthy, a court should exclude the survey from evidence.”
Hodgdon Powder Co. v. Alliant Techsys., Inc., 512 F. Supp. 2d 1178, 1181 (D. Kan.
2007).
B. Universe of Consumers
Med-Systems argues that Dr. Ford’s survey is underinclusive because it did not
focus on all potential consumers for the entire SinuSense™ product line. Docket No.
167 at 6. Med-Systems contends that Dr. Ford’s survey did not target the relevant
universe of consumers because it: (1) focused exclusively on past and current users of
neti pots; (2) did not determine whether the respondents were familiar with the
SinuCleanse® mark; (3) failed to show the respondents all the SinuSense™ products;
and (4) excluded preventative users as well as individuals over the age of 64. Id. at
7-10. Med-Systems alleges that the failure to incorporate the entire universe of
consumers deprives the survey of any probative value and makes its conclusions
irrelevant. Id.
The adequacy of the survey universe is an important factor in assessing the
validity of a survey. See Harolds Stores, Inc. v. Dillard Dept. Stores, Inc., 82 F.3d 1533,
1544 (10th Cir. 1996). A survey’s “appropriate universe should include a fair sampling
of those purchasers most likely to partake of the alleged infringer[‘]s goods or services.”
Exxon Corp. v. Texas Motor Exch. of Houston, Inc., 628 F.2d 500, 507 (5th Cir. 1980)
(quotation marks and citation omitted). A court should only exclude a survey if the

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“sample of respondents clearly does not represent the universe it is intended to reflect.”
Big Dog Motorcycles, LLC v. Big Dog Holdings, Inc., 402 F. Supp. 2d 1312, 1334 (D.
Kan. 2005). Otherwise, issues concerning the sufficiency of the sample go to the
weight and not the admissibility of the evidence. See Harolds Stores, Inc., 82 F.3d at
1546.
In this case, Med-Systems’ counterclaim for trademark infringement is based on
the theory of forward confusion. Forward confusion occurs when the junior user diverts
a senior user’s customers and “attempts to capitalize on” the senior user’s existing
reputation and goodwill. Altira Group LLC v. Philip Morris Cos. Inc., 207 F. Supp. 2d
1193, 1197 (D. Colo. 2002). In cases of forward confusion, “the proper universe to
survey is the potential buyers of the junior user’s goods or services.” MC CARTHY §
32:159 (emphasis in original).
Here, Med-Systems argues that Dr. Ford’s survey did not target the relevant
universe of consumers because it focused exclusively on past and current users of neti
pots. Med-Systems argues that, by focusing on this universe, the survey erroneously
focused on respondents who are more likely to be familiar with SinuCleanse® than
SinuSense™. Docket No. 167 at 6. Additionally, Med-Systems contends that the focus
on past and current users of neti pots excludes prospective consumers who have yet to
purchase a neti pot but may be aware of the marks. Id. at 7. Med-Systems asserts
that, because past and current users of neti pots are more likely to be familiar with
SinuCleanse® when compared to prospective consumers, Dr. Ford’s survey focused on

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the wrong universe because the respondents represent likely purchasers of MedSystems’ products and not Water Pik’s goods.
Med-Systems’ argument is mistaken in that it confuses consumers who are likely
to buy neti pots with those who are likely to be familiar with particular marks. Because
the focus of surveys in forward confusion claims are consumers likely to buy the junior
user’s goods, in cases such as this, where Med-Systems and Water Pik market their
products to similar groups, it is not uncommon for likely consumers of the junior user’s
products to be familiar with both the junior and senior marks. See General Motors Co.
v. Urban Gorilla, LLC, 2010 WL 5395065, at *17 (D. Utah Dec. 27, 2010) (relying on a
survey universe that included consumers who bought an SUV in the last three years
because both parties marketed their products to these consumers). In fact, the entire
premise of forward confusion is the junior user’s ability to divert a senior user’s
customers and free ride off the senior user’s existing reputation and goodwill. See
Altira Group LLC, 207 F. Supp. 2d at 1197. Thus, the simple fact that likely
SinuSense™ consumers are familiar with the SinuCleanse® mark does not, by itself,
exclude these consumers from the survey universe. If all of these consumers were
eliminated from the survey universe, then the survey would never find a likelihood of
confusion. Moreover, as Water Pik argues, the inclusion of consumers familiar with
SinuCleanse® actually increases the likelihood of including within the universe
consumers who may be confused by the SinuSense™ mark. Docket No. 193 at 8.
Therefore, the Court finds that a survey with a target universe focused on past and
current neti pot users is relevant because it is probative of a likelihood of confusion.

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Second, Med-Systems alleges that the survey is flawed because it did not
determine whether the respondents were familiar with the SinuCleanse® mark. Docket
No. 167 at 8. However, as noted above, the focus of a consumer confusion survey
should be the junior user’s goods. See MC CARTHY § 32:159. Therefore, Med-Systems’
argument in this regard is meritless.
Third, Med-Systems claims that Dr. Ford’s decision to test the respondents’
opinions regarding only the neti pot and not Water Pik’s other products bearing the
SinuSense™ mark, such as water pulsators, squeeze bottles, or saline packets, makes
the survey underinclusive because it excludes a large portion of potential consumers.
Docket No. 167 at 8-9. However, this argument relates to the sufficiency of the sample,
which goes to weight, and does not support an exclusion of the survey in its entirety.
See Harolds Stores, Inc., 82 F.3d at 1546 (finding that a survey focused primarily on
female undergraduates at SMU, though underinclusive, was still probative of opinions
relevant to the litigation).
Finally, Med-Systems contends that Dr. Ford’s survey is underinclusive because
it excludes “preventative” users that make up a “fair amount” of users and excludes
individuals over the age of 64 who constitute 14.1% of the population suffering from
chronic sinusitis. Docket No. 167 at 9. However, even if the survey excludes
preventative users, this factor would go to the weight of the evidence and not its
admissibility. Further, there is no evidence in the record showing what percentage of
preventative users utilize neti pots as opposed to other nasal wash remedies. Thus,
without more, the exclusion of preventative users from the survey is not sufficient to
undermine the overall admissibility of the survey. As to the exclusion of those over 64
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years of age, Dr. Ford opined that, although they constitute 14.1% of chronic sinusitis
sufferers, their exclusion from the survey did not have a statistically meaningful impact
on the results of the survey. Docket No. 194-3 at 7-9 (Ford Dep. 53:19-55:5).
Therefore, the Court finds that this exclusion does not affect the report’s admissibility.
Accordingly, the Court finds that Med-Systems’ objections to Dr. Ford’s survey
are unavailing because they relate only to the sufficiency of the sample. See Big Dog
Motorcycles, LLC, 402 F. Supp. 2d at 1334. Despite the limitations identified by
defendant, the responses and conclusions in Dr. Ford’s report are probative of the
degree of confusion in the marketplace between the SinuSense™ mark and the
SinuCleanse® mark. Therefore, Dr. Ford’s survey is admissible because it has some
probative value as it is representative of a fair sample of purchasers likely to purchase
the junior user’s goods. See Brunswick Corp., 832 F.2d at 523 n.6 (finding that a
survey universe including persons over 14 years old who had fished in freshwater
during previous twelve months sampled persons likely to purchase fishing reels and
was therefore probative of the likelihood of confusion between two fishing reel
manufacturers); Big O Tires, Inc. v. Bigfoot 4X4, Inc., 167 F. Supp. 2d 1216, 1225-26
(D. Colo. 2001) (concluding that an underinclusive survey of potential car drivers with a
4.7% margin of error was probative on the issue of confusion despite the deficiencies in
the chosen universe and statistical error rates marring the results).
C. Dr. Ford’s Sample
Med-Systems argues that, even if the survey’s universe is probative, Dr. Ford’s
survey sample is not representative of the target universe because it relies exclusively

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on the Lynx report to draw its representative sample. Id; Docket No. 167-1 at 35 (Ford
Dep. 59:13-25). Med-Systems claims that the Lynx report focused on whether
individuals were likely to try nasal wash products generally and was not limited to
potential neti pot users. See generally Docket No. 167-5. As such, the Lynx report
does not accurately narrow the population of neti pot users. Docket No. 200 at 7.
Additionally, Med-Systems contends that the Lynx report does not provide an
explanation of its sampling methodology or reveal the source of the survey
demographics. Docket No. 200 at 8. As a result, Med-Systems claims that, because
Dr. Ford did not examine the Lynx report’s sampling methodology but merely assumed
that the information was accurate, the survey’s results are systematically flawed and
should be excluded as irrelevant under Fed. R. Evid. 402. Docket No. 167 at 13.
Although technical and methodological deficiencies in a survey typically bear on
the weight of the evidence, Brunswick Corp., 832 F.2d at 523, “when the deficiencies
are so substantial as to render the survey’s conclusions untrustworthy, a court should
exclude the survey from evidence.” Hodgdon Powder Co., 512 F. Supp. 2d at 1181.
Here, Dr. Ford’s reliance on the Lynx report without an examination of the underlying
sampling methodology poses questions about the survey’s overall reliability. See
MC CARTHY § 32:159 (“A survey of the wrong ‘universe’ will be of little probative value in
litigation.”). This is especially true because Dr. Ford’s survey was based on a
nonprobability representative sample and not a probability sample. Docket No. 167-1 at
19 (Ford Dep. 29:24 - 30:15); see MC CARTHY § 32:159 (“only a probability sample can
be projected to the entire universe by the use of definite mathematical and statistical

12

probability models.”). In a representative survey, the goal is to design a sample that is
representative of the underlying target population. Id. In accordance with this practice,
Dr. Ford constructed his survey based on several assumptions contained in the Lynx
report. For example, Dr. Ford fixed gender quotas at 50% male and 50% female and
limited the respondents to those between 18-64 years of age. Docket No. 167-1 at 5,
¶ 24. Additionally, Dr. Ford did not consider other demographic data such as income or
education levels because he believed these would be encompassed in the
representative sample. Docket No. 167-1 at 35 (Ford Dep. 59:1-8). Thus, if the
methodology of the Lynx report is unsound, it may severely undermine Dr. Ford’s
survey. Although the proponent of the expert opinion has the burden of proof, see
Crabbe, 556 F. Supp. 2d at 1221 (noting that the proponent of the expert has the
burden of proving that the methodology applied is otherwise reliable and generally
accepted), because this issue was not fully briefed by the parties it is unclear to what
extent this error impacts the survey’s overall conclusions. Thus, the Court will reserve
ruling on this particular issue and request that the parties provide supplemental briefing
on the Lynx report’s methodology and whether Dr. Ford’s reliance on the Lynx report
renders his findings irrelevant.
D. Dr. Ford’s Survey Design
Finally, Med-Systems argues that Dr. Ford’s survey design is systematically
flawed because it: (1) fails to expose respondents to both the SinuSense™ and the
SinuCleanse® marks and trade dress; (2) allows respondents to view the stimulus
during survey questioning; and (3) demands that customers identify the company name

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rather than the brand name. Docket No. 167 at 13. The Court finds all of these
arguments unavailing.
First, Med-Systems argues that Dr. Ford’s survey is flawed because it does not
expose consumers to both the SinuSense™ and SinuCleanse® marks. However, the
Tenth Circuit has repeatedly explained that “[i]t is axiomatic in trademark law that ‘sideby-side’ comparison is not the test.” Jordache Enters., Inc. v. Hogg Wyld, Ltd., 828
F.2d 1482, 1487-88 (10th Cir. 1987). A survey that conducts such a side-by-side
comparison “bears little resemblance to the actual workings of the marketplace.” Id. at
1488; Univ. of Kansas v. Sinks, 2008 WL 755065, at *5 (D. Kan. March 19, 2008). The
inquiry of a likelihood of confusion is instead based entirely on the overall looks of the
competing products when singly presented. King of the Mountain Sports, Inc., 185 F.3d
at 1090.
Here, Med-Systems does not provide evidence that the products are ever sold
side-by-side. See Docket No. 193-4 at 3 (Gallo Dep. 64:19-23). Thus, performing a
survey with a side-by-side comparison would not accurately account for the
marketplace conditions under which consumers encounter the two competing marks.
See MC CARTHY § 32:159 (noting that, in cases of forward confusion, the proper
universe to survey is the potential buyers of the junior user’s goods or services).
Moreover, because the focus of forward confusion is whether the junior user’s mark
benefits from the senior user’s goodwill, a focus on the junior’s mark is consistent with
determining whether potential customers are indeed confused. See Jordache Enters.,
Inc., 828 F.2d at 1488 n.5 (“Other surveys have easily avoided ‘side-by-side’

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comparisons by simply showing a consumer the product bearing the allegedly
confusing mark and asking who manufactures the product and what other products are
sold by that manufacturer.”). Accordingly, Med-Systems’ objection to Dr. Ford’s failure
to show consumers both the SinuSense™ and the SinuCleanse® is rejected.
Second, Med-Systems argues that Dr. Ford’s survey is flawed because the
respondents were permitted to view the stimulus during questioning. However, surveys
only provide useful evidence of confusion if the survey mirrors a real world setting. See
Coherent, Inc. v. Coherent Techs., Inc., 935 F.2d 1122, 1126 (10th Cir. 1991).
Additionally, “the closer the survey methods mirror the situation in which the ordinary
person would encounter the trademark, the greater the evidentiary weight of the survey
results.” MC CARTHY § 32:163. In this case, it is undisputed that customers are able to
touch the packages and examine the neti pots before making a purchase. See Docket
No. 194-2 at 10 (Belch Dep. 96:8-12) (“[in] the actual world [consumers] in the store . .
. handle the boxes and so forth.”). Moreover, Med-Systems’ own expert, Dr. Belch,
concedes that, in order to simulate the actual marketplace, it would be preferable for
the consumers in the survey to have the ability to touch the box. Docket No. 194-2 at 9
(Belch Dep. 95:22-23) (“I think it would be better if people could hold the box [in surveys
to replicate market conditions].”). Therefore, Med-Systems’ argument that Dr. Ford’s
survey was flawed because it permitted the respondents to handle the merchandise is
unconvincing because the survey accurately accounted for marketplace conditions
under which consumers encounter the neti pots.
Third, Med-Systems argues that Dr. Ford’s survey is flawed because it requires
that respondents identify the company name rather than the product’s brand name.
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However, the inquiry under both a trademark infringement and a trade dress claim is
whether the marks are so similar that “there is a likelihood of confusion among
consumers as to the source of the competing products.” General Motors Co., 2010 WL
5395065 at *13 (emphasis added); see Sally Beauty Co., Inc., 304 F.3d at 979 (“[t]he
factors underlying a likelihood of confusion analysis in a trademark infringement claim
apply equally to trade dress infringement claims.”). Thus, for a survey to test confusion
it must determine whether the “ordinary prospective purchaser, exercising due care in
the circumstances, is likely to regard [the junior mark] as coming from the same source
as the trade-marked article [the senior mark].” Amoco Oil Co. v. Rainbow Snow, 748
F.2d 556, 558 (10th Cir. 1984); see John Allan Co. v. Craig Allen Co. LLC, 540 F.3d
1133, 1138 (10th Cir. 2008) (“confusion results when a mark is likely to deceive
purchasers or users as to the source, endorsement, affiliation, or sponsorship of a
product.”); MC CARTHY § 15:11 at 15-22 (“the buyer, to be deceived, must be looking for
some symbol which she thinks identifies a single, albeit anonymous, source.”).
Moreover, Dr. Ford’s experiment was tailored to Professor McCarthy’s generally
accepted “Standard Format” to test confusion in trademark cases. See Docket No.
167-1. Further, it would make little sense to test a consumer’s confusion with regard to
the source of a product by simply asking him to name the brand or the mark.
Therefore, the Court finds that Med-Systems’ argument is unconvincing because the
survey questions appropriately tested confusion with regard to the source of the marks
and Dr. Ford followed generally accepted methods in framing the questions of the
survey. Big O Tires, Inc., 167 F. Supp. 2d at 1225 (finding that a survey where

16

consumers were asked whether the marks were made by the same or different
companies was admissible to test confusion).
IV. CONCLUSION
Accordingly, it is
ORDERED that the parties shall submit supplemental briefs discussing the Lynx
report’s effect on the admissibility of Dr. Ford’s survey. The briefs shall be no longer
than ten pages and shall be submitted by January 11, 2012.
DATED January 5, 2012.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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