J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 99

REPLY MEMORANDUM OF LAW in Support re: 68 MOTION to Preclude the Testimony of Defendant's Expert Witness Gregory S. Carpenter.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Chattoraj, Partha)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

J.T. COLBY & COMPANY, INC. d/b/a/
BRICKTOWER PRESS, J. BOYLSTON &
COMPANY, PUBLISHERS LLC and
IPICTUREBOOKS LLC,

Plaintiffs,
-againstAPPLE INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 11 Civ. 4060 (DLC)

REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION TO
EXCLUDE THE TESTIMONY, INCLUDING AFFIDAVITS, DECLARATIONS, AND
REPORTS, OF DEFENDANT’S EXPERT WITNESS GREGORY S. CARPENTER

ALLEGAERT BERGER & VOGEL LLP
111 Broadway, 20th Floor
New York, NY 10006
[phone]

TABLE OF CONTENTS
Page
ARGUMENT ...................................................................................................................................2
I.

UNDER BOTH THE LAW AND THE FACTS, MR. CARPENTER IS NOT
QUALIFIED TO OPINE ABOUT MARKETING IN THE BOOK
PUBLISHING INDUSTRY.................................................................................................2
A.
B.

II.

Courts Recognize That General Experience Alone, Without a Nexus, Does
Not Qualify an Expert to Provide Opinions Regarding a Specific Field .................3
Mr. Carpenter’s General Experience Alone Does Not Render Him
Qualified ..................................................................................................................6

MR. CARPENTER IS NOT QUALIFIED TO OPINE ON LEGAL CONCEPTS ............8
A.

Mr. Carpenter Does Not Have Any Experience Allowing Him to Rebut
Mr. Scherer ..............................................................................................................8

B.

Mr. Carpenter’s Opinions on Lack of Consumer Recognition Are
Improper ...................................................................................................................9

C.

Mr. Carpenter’s Opinions on Likelihood of Confusion Are Improper ..................10

CONCLUSION ..............................................................................................................................10

i

TABLE OF AUTHORITIES
Page
Cases
Bright v. Ohio Nat. Life Assur. Corp.,
2013 WL 121479 (N.D. Okla. Jan. 9, 2013) ..............................................................................4
City of Hobbs v. Hartford Fire Ins. Co.,
162 F.3d 576 (10th Cir. 1998) ...................................................................................................3
Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993) ...............................................................................................................7, 8
Highland Capital Mgmt., L.P. v. Schneider,
379 F. Supp. 2d 461 (S.D.N.Y. 2005)........................................................................................8
Klaczak v. Consol. Med. Trans.,
458 F. Supp. 2d 622 (N.D. Ill. 2006) .........................................................................................8
Lappe v. Am. Honda Motor Co.,
857 F. Supp. 222 (N.D.N.Y. 1994) ............................................................................................4
PAJ, Inc. v. Barons Gold Mfg. Corp.,
2002 WL 1792069 (S.D.N.Y. Aug. 2, 2002) .............................................................................9
Price v. Fox Entm't Group,
499 F. Supp. 2d 382 (S.D.N.Y. 2007)........................................................................................9
R.F.M.A.S., Inc. v. So,
748 F. Supp. 2d 244 (S.D.N.Y. 2010)........................................................................................7
Ralston v. Smith & Nephew Richards, Inc.,
275 F.3d 965 (10th Cir. 2001) ...................................................................................................9
Rich & Rich P'ship v. Poetman Records USA, Inc.,
2010 WL 1978804 (E.D. Ky. May 17, 2010) ............................................................................5
Stagl v. Delta Air Lines, Inc.,
117 F.3d 76 (2d Cir. 1997).................................................................................................4, 5, 6
TC Sys., Inc. v. Town of Colonie, N.Y.,
213 F. Supp. 2d 171 (N.D.N.Y. 2002) .......................................................................................5
Trustees of Univ. of Penn. v. Lexington Ins. Co.,
815 F.2d 890 (3d Cir. 1987).......................................................................................................4
U.S. v. Prouse,
945 F.2d 1017 (8th Cir. 1991) ...................................................................................................4

ii

Statutes
Fed. R. Evid. 403 .............................................................................................................................2
Fed. R. Evid. 702 .............................................................................................................................2
Miscellaneous
J. Thomas McCarthy,
Trademarks & Unfair Competition............................................................................................9

iii

PRELIMINARY STATEMENT
Apple’s Opposition to Plaintiffs’ Motion to Exclude Gregory S. Carpenter (“Opposition”
or “Opp.”) does not even acknowledge, let alone rebut, the primary justification for excluding his
testimony: Mr. Carpenter has no experience in the book-publishing industry and he made no
effort to educate himself about marketing in the book-publishing industry. 1 As Mr. Carpenter
himself opined, in order to apply “general,” high-level marketing principles, one must have
knowledge of the industry to which these principles are being applied. 2 Under his own standard,
Mr. Carpenter fails. Because he has neither experience in nor knowledge about the bookpublishing industry, his opinions on marketing principles as applied to book publishing are
supported by nothing but his own ipse dixit.
Apple attempts to obscure this fatal defect by detailing (at absurd length) Mr. Carpenter’s
general background as a marketing professor.

But as case law—including cases cited by

Apple—demonstrates, general experience alone cannot qualify an expert to opine on practices in
specific fields; rather, that expert also must take steps to educate himself or herself about the
specific field to assure the Court that his or her proffered testimony is reliable. Here, Mr.
Carpenter seeks to opine that his “general principles” apply to the book-publishing industry, but
because he took no steps to educate himself about book publishing, his opinions have no
reliability based on his “knowledge, skill, experience, training, or education,” and the
1

Plaintiffs respectfully direct the Court to their Memorandum of Law In Support of Plaintiffs’ Motion to Exclude
the Testimony, Including Affidavits, Declarations, and Reports, of Defendant’s Expert Witness Gregory S.
Carpenter (“Motion” or “Mot.”) for all terms defined therein. Unless otherwise noted, all citations to Mr.
Carpenter’s Reports and deposition transcript can be found at Exhibits A-C to the Bogdanos Declaration in support
of this Motion. All other citations to expert reports and deposition transcripts are attached as exhibits to the
Declaration of Todd Anten (“Anten Decl.”) in support of this Motion, dated February 5, 2012.
2

Mr. Carpenter testified, for example, that “particular [marketing] strategies that are effective vary from context to
context,” and that “[w]hat works in automobiles is different than what might work for some brands, in coffee, for
example. So you need to understand those differences, the meaningful dimensions of those differences to make
recommendations about what works and what wouldn’t work.” (Carpenter Tr. 7:23-8:12.) Bizarrely, Apple does
not even acknowledge this testimony from its own expert, let alone explain why it should be disregarded.

1

introduction of his opinions would only confuse the jury and prejudice Plaintiffs. See Fed. R.
Evid. 702, 403.
Even more egregious is Apple’s attempt to convince the Court that Mr. Carpenter, a
marketing professor, is somehow qualified to offer purported expert opinions on legal topics
such as (1) whether a trademark assignment is valid and whether it included a transfer of
goodwill; (2) whether Plaintiffs’ IBOOKS mark reached the requisite level of secondary
meaning among its customers to constitute a protectable and enforceable trademark; and (3)
whether Apple’s use of the IBOOKS mark causes a likelihood of confusion as that term is
understood in trademark law. Mr. Carpenter, however, does not even understand what these
concepts are. He has no legal training and, among other glaring gaps in his knowledge, does not
even appear to understand what it means to cause “confusion by affiliation” (the alleged form of
confusion at issue in this case). In short, Mr. Carpenter’s opinions on these topics would be of
no more help to the factfinder than would the opinions of a layperson, and therefore must be
excluded.
ARGUMENT
I.

UNDER BOTH THE LAW AND THE FACTS, MR. CARPENTER IS NOT
QUALIFIED TO OPINE ABOUT MARKETING IN THE BOOK
PUBLISHING INDUSTRY
In their Motion, Plaintiffs explained that, while Mr. Carpenter may be a professor of

marketing, he is not an expert in book publishing, nor does he have even a basic understanding
of the book-publishing industry. As such, he is not qualified to opine on the adequacy of
Plaintiffs’ marketing strategies or practices. In its opposition, Apple twists Plaintiffs’ position to
be that someone with general marketing experience can never provide expert testimony, and that
Mr. Carpenter must have personally worked in the book-publishing industry for his testimony to
be admissible. Neither of these forms the basis of Plaintiffs’ Motion.
2

Plaintiffs’ point is a simple one: Mr. Carpenter has no book-publishing industry
experience and did nothing to educate himself about the industry before preparing his Reports.
It is his failure to educate himself about marketing in the book-publishing industry that renders
his testimony unqualified and inadmissible. This is true not only under the law, but also in Mr.
Carpenter’s own opinion—he testified that marketing is sector- and company-specific, and in
order to evaluate sufficiently a company’s marketing strategies, the evaluator must be “aware of
the context and understand some of the tickers.” (Carpenter Tr. 7:5-6, 8:4-12.) While Mr.
Carpenter provided a lengthy list of materials he reviewed in constructing his Reports, none of
these materials has anything to do with marketing practices in the book-publishing industry. 3
A.

Courts Recognize That General Experience Alone, Without a Nexus, Does
Not Qualify an Expert to Provide Opinions Regarding a Specific Field

As an initial matter, Apple does not pretend that Mr. Carpenter has any marketing
experience in the book-publishing industry; rather, Apple simply claims that “there is no
requirement” that he have such experience. (Opp. at 6.) While experts with general experience
may be permitted to testify about specific topics about which they do not have experience, such
experts must establish that they have taken steps to educate themselves about the specific topic at
issue, thereby providing a nexus between their general experience and the specific field.
First, courts routinely exclude proffered experts who have knowledge in a general field
but do not have specific knowledge relevant to the case. “Though a proffered expert possesses
knowledge as to a general field, the expert who lacks specific knowledge does not necessarily
assist the jury.” City of Hobbs v. Hartford Fire Ins. Co., 162 F.3d 576, 587 (10th Cir. 1998)
(emphasis added) (citation omitted). For example, courts have excluded experts who had general

3

In contrast, Plaintiffs’ expert Dr. Susan Schwartz McDonald offers marketing insight into consumer
perceptions—not internal business practices within a specialized industry.

3

knowledge about insurance disputes, but not specific knowledge about particular kinds of
insurance disputes. See, e.g., id.; Bright v. Ohio Nat. Life Assur. Corp., 2013 WL 121479, at *2
(N.D. Okla. Jan. 9, 2013) (“Generalized knowledge of insurance disputes does not cure the lack
of specialized knowledge of [Oklahoma] bad faith cases.”) (quotation marks omitted); see also,
e.g., U.S. v. Prouse, 945 F.2d 1017, 1025-26 (8th Cir. 1991) (affirming exclusion of chemist who
only had experience with simple sobriety tests from testifying as to specific effects of alcohol);
Trustees of Univ. of Penn. v. Lexington Ins. Co., 815 F.2d 890, 903 (3d Cir. 1987) (affirming
exclusion of expert who had years of experience as a claims adjuster but no experience with
claims of magnitude at issue). Indeed, the Second Circuit has confirmed that courts have the
discretion to exclude such experts where “other experts exist who are more specifically
qualified.” Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81 (2d Cir. 1997).
Second, in determining whether an expert with general knowledge can extend his
opinions to a specific field, courts require some showing of specific knowledge in addition to
that general knowledge—for example, experience that is analogous or similar to the specific field
at issue, or efforts by the expert to educate himself about the specific field. In fact, the cases
cited by Apple confirm that, if an expert with general knowledge or experience in a field wishes
to provide expert testimony, there also must be some nexus to bridge the expert’s general
experience to the specific field in question. In Lappe v. Am. Honda Motor Co., 857 F. Supp. 222
(N.D.N.Y. 1994), for example, the court found that “[w]here an expert has the education or
background to permit him to analyze a given set of circumstances, he can through reading,
calculations and reasoning … make himself very much an expert in the particular product
even though he has not had actual experience in its manufacture.” Id. at 226-27 (quotation marks
and citations omitted) (emphasis added). Here, while Mr. Carpenter recognized the need to

4

become an expert in the “product” (here, the book-publishing industry) to opine on marketing
issues related thereto, he failed to educate himself about the industry so that he could “make
himself” an expert in it. Instead, he did nothing. 4
To this end, Apple deeply misconstrues Stagl v. Delta Air Lines, Inc. In Stagl, a personal
injury case relating to unsafe airport baggage systems mechanisms, the Court began by stating:
[O]ne of the factors that the district court ought to consider is whether other experts
exist who are more specifically qualified and who are nonetheless not in the employ
of the company or industry whose practices are being challenged. If the only
experts permitted to testify inevitably represent the same side of a civil case, those
who possess these experts can, for all practical purposes, set their own standards.
117 F.3d at 81. After considering the plaintiff’s expert, the Court found that “[i]t is hard to
imagine an expert in airport terminal design or baggage claim systems who developed that
expertise in any way other than by working for the airline industry.” Id. at 82. Thus, according
to the Court, it was unfair to require that an expert work directly in the field in question, because
such a requirement would render all qualified experts biased.
Stagl, however, strongly supports Mr. Carpenter’s exclusion. First, the proffered expert
in Stagl also had a nexus beyond his general experience—he was not just a mechanical engineer,
but the relevant “interaction between people and machinery is clearly of the sort that [he] has
worked with in depth.” Id. (emphasis added). Mr. Carpenter does not claim to have experience
with fields that are “of the sort” of the book-industry—his marketing experience lies in
motorcycles, cruises, and Coca-Cola. Second, unlike the expert in Stagl, Mr. Carpenter could

4

The same is true in the other cases cited by Apple. In Rich & Rich P’ship v. Poetman Records USA, Inc., 2010
WL 1978804 (E.D. Ky. May 17, 2010), for example, although the challenged expert did not have marketing
experience in the specific field of marketing audio CDs sold in Kentucky, the court found she had experience in the
marketing of similar products sold in Kentucky, and so “ha[d] experience marketing to the demographics that would
be targeted for Rich & Rich’s album.” Id. at *2. Carpenter, however, has made no similar claim. And in TC Sys.,
Inc. v. Town of Colonie, N.Y., 213 F. Supp. 2d 171, 175 (N.D.N.Y. 2002), the expert did not opine on specifics of
the case, but on “broad economic principles and market forces.” Here, Mr. Carpenter is not merely offering general
testimony on “broad [marketing] principles,” but rather seeks to opine specifically on the book-publishing industry.

5

have educated himself about the book-publishing industry by conducting interviews with people
in that industry or researching marketing practices in book publishing. He simply chose not to.
He therefore has no idea if his general principles or other experiences have any applicability to
book publishing. Finally, Apple does not contest that “other experts exist” who may opine on
marketing practices in the book-publishing industry. Stagl is therefore inapplicable.
B.

Mr. Carpenter’s General Experience Alone Does Not Render Him Qualified

Apple spills much ink touting Mr. Carpenter’s status as a marketing professor, detailing
his educational history, research, and scholarship, in order to distract the Court from a crucial,
dispositive fact: nothing in Mr. Carpenter’s background bears on the book-publishing industry.
Likewise, Mr. Carpenter never bothered to take any steps to educate himself about marketing
practices in the book-publishing industry—he failed to remedy his lack of industry-specific
experience so that he could apply his general knowledge to the facts of this case. He has no
nexus to book publishing at all, be it through experience or education.
Apple’s claim that Mr. Carpenter’s general marketing knowledge is sufficient to opine on
the idiosyncratic world of book-publishing marketing is not only contrary to the law (as
discussed supra Part I.A), but is also contrary to common sense. In Apple’s view, Mr. Carpenter
is automatically qualified to provide expert testimony to a jury about anything related to
“marketing” in any case in the country, no matter how nuanced, unique, or unfamiliar the field,
and regardless of his failure to educate himself about the industry on which he is opining. Such a
wildly macro view of a field as broad and diverse as “marketing” cannot be accepted.
Attempting to cobble together some relevant experience to satisfy the requisite nexus,
Apple claims that Mr. Carpenter has “provided executive seminars for people in magazine
publishing and media and related business and many businesses that have characteristics

6

associated with book publishing.” (Opp. at 10.) 5 This vague assertion cannot form a foundation
for sufficient expertise to testify about book-publishing. First, it is puzzling that Apple can
represent that Mr. Carpenter has given seminars for “many businesses that have characteristics
associated with publishing” when Mr. Carpenter never did any research to determine what those
characteristics in book publishing are. In other words, how would he know? Mr. Carpenter did
no research on the book-publishing industry, so any attempt to compare his experiences to that
field are based on nothing more than rank speculation and ipse dixit. 6 Second, simply because
Mr. Carpenter gave a seminar to magazine publishers does not mean that he knows about
anything about marketing as applied to magazine publishing. 7
Mr. Carpenter’s Report corroborates that the materials he referenced have no bearing on
book publishing. His “Materials Reviewed” Appendix, for example, does not list any materials
related to marketing in the book-publishing industry. (Carpenter Rep., App’x B.) While Apple
claims that, in preparing his Report, Mr. Carpenter “investigated publishing industry statistics;
studied Plaintiffs’ website; reviewed New York Times bestseller lists … [and] reviewed
publishing industry directories” (Opp. at 11.), none of these materials provide him with an
understanding of how book publishers conduct their marketing activities. 8

Because Mr.

5

Notably, neither Mr. Carpenter nor Apple mentioned these seminars until Mr. Carpenter’s deposition, and to date
still have not identified the magazine publishers or the subjects of the seminars.

6

To this end, whether Mr. Carpenter gave a seminar to magazine publishers cannot per se qualify his opinions on
marketing practices in book publishing—he does not know whether marketing in these industries are similar.
7

Apple also failed to demonstrate that Mr. Carpenter’s purported “seminars” even relate to marketing. This is not
an issue of credibility, but is rather an unmet burden; Apple bears the burden of proof, at the outset, of establishing
that Carpenter is qualified. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 n.10 (1993); R.F.M.A.S.,
Inc. v. So, 748 F. Supp. 2d 244, 269 (S.D.N.Y. 2010) (expert’s “conclusory statement is plainly inadequate to satisfy
[movant’s] burden of proving by a preponderance of the evidence that its experts are qualified to offer their
proposed testimony”).
8

The “publishing industry statistics” to which Apple refers is a webpage from “Dan Poynter’s Parapublishing.com”
and includes statistics such as “54% of small independent publishers are male.” (Carpenter Rep., Ex. 1 (Anten
Decl., Ex. A) at 3.) It is unclear what this page is, or how such statistics would help Mr. Carpenter understand
marketing in the book-publishing industry. Further, he does not list any materials about marketing practices in the
(footnote continued)

7

Carpenter’s “competence in the general field [at issue] must extend to his specific testimony on
the matter before the Court,” and because Mr. Carpenter did not do the work to gain “sufficient
specialized expertise to render his opinion on the topic … reliable, as required by Daubert,” he
must be excluded. Klaczak v. Consol. Med. Trans., 458 F. Supp. 2d 622, 665 (N.D. Ill. 2006)
(quotation marks omitted). 9
II.

MR. CARPENTER IS NOT QUALIFIED TO OPINE ON LEGAL CONCEPTS
A.

Mr. Carpenter Does Not Have Any Experience Allowing Him to Rebut Mr.
Scherer

Apple’s contention that Mr. Carpenter can “appl[y] his marketing expertise to assess
whether Family Systems’ goodwill (or brand equity) in its IBOOK mark was in fact transferred
to Apple” (Opp. at 15) as a rebuttal to Mr. Scherer’s opinions is untrue. While the ultimate
question of whether goodwill has transferred is for the Court to decide, Mr. Scherer, a former
PTO examiner with over 30 years of legal and trademark experience, is well-situated to evaluate
and explicate factual issues and standard practices which could help the Court reach such a
determination. See Highland Capital Mgmt., L.P. v. Schneider, 379 F. Supp. 2d 461, 468
(S.D.N.Y. 2005). Mr. Carpenter, however, is not so situated. Mr. Carpenter’s entire opinion in
this regard is premised upon the unsupported contention that “brand equity” is the marketing
corollary of the legal concept of goodwill. (See Mot. at 11-12.) However, as he recognizes, the
book-publishing industry.
9

In an effort to bolster Mr. Carpenter’s Reports despite his lack of qualifications, Apple claims that Plaintiffs’
expert Mr. Shatzkin “offered nearly the same opinion as Dr. Carpenter.” (Opp. at 12.) This is bunk—Mr. Shatzkin
strongly disputed Mr. Carpenter’s opinions. First, notwithstanding the misleadingly excerpted quotes from Mr.
Shatzkin’s deposition, Mr. Shatzkin could not have been clearer that, in his opinion, “publishers spend no money
creating consumer awareness of brands.” (Deposition of Mike Shatzkin, December 4, 2012 (Anten Decl., Ex. B) at
193:17-194:3.) As Mr. Shatzkin described, “It’s not only a common thing that experts in other fields fail to
understand publishing, the failures are generally of a category which is they don’t get the granularity of it. That’s
exactly what Carpenter failed to get. … Anybody coming into publishing from the outside their jaw drops.” (Id.
220:18-221:23.) To describe Mr. Carpenter as offering the “same opinion” as Mr. Shatzkin is ludicrous. Second, it
of course makes no difference whether the two came to the same conclusions—the issue here is whether Mr.
Carpenter is qualified to opine at all.

8

assignment of goodwill is a legal concept, and Mr. Carpenter does not (and cannot, given his
lack of legal training) explain why transferred brand equity should equate to transferred
goodwill. 10 By his own admission, Mr. Carpenter is not qualified to opine on such concepts;
thus, this testimony must be excluded. 11 See, e.g., Price v. Fox Entm’t Group, 499 F. Supp. 2d
382, 389 (S.D.N.Y. 2007) (excluding expert who opined on principles of copyright law, but
admitted at deposition he did not understand the meaning of those principles); see also Ralston v.
Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001) (expert not qualified on a
particular topic where expert admitted she lacked expertise on that subject).
B.

Mr. Carpenter’s Opinions on Lack of Consumer Recognition Are Improper

While the existence of secondary meaning is question of fact, secondary meaning itself is
a legal concept. See PAJ, Inc. v. Barons Gold Mfg. Corp., 2002 WL 1792069, at *2 (S.D.N.Y.
Aug. 2, 2002) (citing 2 J. Thomas McCarthy, Trademarks & Unfair Competition § 11:82). In
order to determine whether secondary meaning exists based on the facts at hand, one must first
understand what secondary meaning is—and Mr. Carpenter does not have the specific
background and training to understand. (See Carpenter Tr. 98:14-99:9.) Further, as discussed
above (see supra Part I), Mr. Carpenter also does not understand how secondary meaning is
developed within the book-publishing industry and thus cannot properly opine on factual issues
such as how Plaintiffs’ sales compare to the industry standard or the nature and impact of
Plaintiffs’ internal marketing practices.

Lacking the requisite bases, Mr. Carpenter is not

qualified to give an ultimate opinion on whether secondary meaning exists in this case.
10

The absurdity of this argument is underscored by Apple’s contention that Mr. Carpenter’s conclusions regarding
goodwill are based on his marketing analysis of certain facts (including, e.g., the assignment agreement between
Apple and Family Systems). In essence, Apple argues that Mr. Carpenter applied his “marketing expertise” to a
legal contract between two parties in order to arrive at a marketing opinion as to a legal concept, with no explanation
as to why a marketing professor’s opinion of a legal document is at all helpful to the finder of fact.

11

See Carpenter Tr. 98:14-99:9, 135:21-136:12.

9

C.

Mr. Carpenter’s Opinions on Likelihood of Confusion Are Improper

Mr. Carpenter’s opinions on likelihood of confusion likewise fall outside of the realm of
his expertise. As Apple admits, “likelihood of confusion is a legal question,” and Apple has put
Mr. Carpenter forward to testify about “marketing in the publishing industry as a factual matter.”
(Opp. at 14.) Mr. Carpenter’s opinions on a legal concept are unlikely to help the factfinder
when he does not even understand what “confusion by affiliation”—the type of confusion at
issue in this case—is. (See Carpenter Tr. 103:4-11, 103:21-104:3.) Mr. Carpenter’s opinions on
the likelihood of confusion are no more helpful to a finder of fact than a layperson’s would be,
and thus should be excluded. (See Mot. at 9-10.)
CONCLUSION
For the foregoing reasons, the Court should grant Plaintiffs’ Motion in its entirety.

Dated: New York, New York
February 5, 2013
Respectfully submitted,
ALLEGAERT BERGER & VOGEL LLP

By:

Of counsel:
Robert L. Raskopf
Claudia T. Bogdanos
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, New York, 10010
Telephone: [phone]
Facsimile: [phone]

/s/ Partha P. Chattoraj
Partha P. Chattoraj
David A. Shaiman
111 Broadway, 20th Floor
New York, New York 10006
[phone]
Attorneys for Plaintiffs J.T. Colby & Co., Inc. d/b/a
Brick Tower Press, J. Boylston & Co., Publishers,
LLC, and ipicturebooks, LLC

10