---
title: "Market Research Expert Allowed to Opine on Consumer Perception"
meta:
  "og:description": "The market research expert was allowed to opine on the likelihood of consumer confusion, given his expertise in consumer perception"
  "og:title": "Market Research Expert Allowed to Opine on Consumer Perception"
  author: "Shuva Guha Thakurta"
  description: "The market research expert was allowed to opine on the likelihood of consumer confusion, given his expertise in consumer perception"
---

# Market Research Expert Allowed to Opine on Consumer Perception

Posted on August 18, 2026 by Shuva Guha Thakurta

This is a trademark dispute between businesses in the vaping industry. Plaintiff 7D Holdings, LLC ("7D") owns the rights to three federally registered trademarks: DAZE, 7 DAZE, and SEVEN DAYS.

In 2023, 7D began selling hemp-derived products under the brand name GRDNT through its licensee 1 Week Distribution, LLC, using its marks to identify 7 DAZE MFG as the source of the products.

Defendants Allen Huang ("Huang") and Jonathan Knarreborg ("Knarreborg") own and/or operate several companies—including Defendants AG Science Solutions, Inc. dba Shyne Labs; A to J Group, LLC; GenRev Labs, LLC; and Jawk Holdings, LLC (collectively, "Defendants")—involved in the manufacture of hemp products. Defendants began using the name "DazeD8" in 2020.

In 2023, Defendants began to sell nicotine products, including vapes branded as DazeD Bar. 7D's principal and sole member, John Lau ("Lau"), first learned about Defendants at a trade show in 2022. In his deposition, Lau testified that he heard customers confuse 7D with Defendants' DazeD8 brand. 7D sent Defendants two cease and desist letters before filing the present action.

7D sued Defendants for trademark infringement, unfair competition, and cyberpiracy under federal law, and unfair competition under Kentucky common law. Defendants filed counterclaims seeking a declaration of non-infringement, the cancellation of trademark registration No. 5424919, and refusal of trademark application No. 90756988.

7D sought to exclude Defendants' experts, Dr. [Scott D. Hakala](https://expertwitnessprofiler.com/expert-witness/Scott-Hakala/1515326) and [Brian M. Sowers](https://expertwitnessprofiler.com/expert-witness/Brian-Sowers/1535983).

![Market Research Expert Allowed to Opine on Consumer Perception](https://cdn.jurimatic.com/images/blog_pic_640X48000.webp)

## Business Valuation Expert Witness

[Scott David Hakala](https://expertwitnessprofiler.com/expert-witness/Scott-Hakala/1515326) has more than 30 years of business consulting and business valuation experience, concentrating on complex financial analyses. He provides business valuation and financial consulting services to companies in a broad range of industries.

[Want to know more about the challenges Scott Hakala has faced? Get the full details with our Challenge Study report](https://expertwitnessprofiler.com/order/add?eId=1515326&pId=3).

## Market Research Expert Witness

[Brian Michael Sowers](https://expertwitnessprofiler.com/expert-witness/Brian-Sowers/1535983) is a Principal at Applied Marketing Science, Inc. (AMS), a distinguished market research and consulting firm. With a career spanning since 1996, he has amassed extensive expertise in market research. Prior to AMS, Sowers held research positions at the Forbes Consulting Group. Throughout his career, he personally designed and executed numerous market research surveys across diverse modalities and populations. Sowers holds a Bachelor of Arts in History from Roanoke College and earned a Master of Business Administration from the University of Colorado.

[Gain a comprehensive understanding of Brian Sowers' qualifications and casework history with his Expert Witness Profile report](https://expertwitnessprofiler.com/order/add?eId=1535983&pId=3).

## **Discussion by the Court**

### 1. _Plaintiff's Motion to Exclude Hakala_

### **a. Qualifications as a Trademark Expert**

7D argued that Hakala is not qualified as a trademark or consumer perception expert. While likelihood of confusion and genericness are the foci of 7D's challenge to Hakala's qualifications, 7D also argued that Hakala has "fundamental misunderstandings of trademark principles and their application to infringement analyses due to his lack of qualifications, expertise, or specialized knowledge in the relevant fields," so "his testimony regarding trademark issues, including his opinions on [the experts'] surveys, should be excluded . . . ."

Because Defendants did not address 7D's arguments about Hakala's lack of qualifications to testify regarding trademark issues generally or in the context of damages, those arguments are waived.

Therefore, Hakala may not testify to any matter requiring specialized knowledge of trademarks.

### **b. Parroting Huang's Opinions**

7D argued that Hakala's opinions concerning Defendants' sales revenue and expenses simply "parrot" Huang's opinions.

Regarding sales realized, Hakala acknowledged that there are issues with Defendants' records; in some cases, there was an invoice for a product in Defendants' system, but Huang told him it had never been shipped. Hakala's report states:

**"Furthermore, the sales are overstated due to the fact that many of the identified products were ordered, shipped, and/or invoiced but returned or not paid for. Net sales are substantially lower than the sales reported in the Decker Report. _I estimate that only about 80% of the sales reported_, as summarized in Schedule B, from 2022 through the first half of 2025, _were collected or realized_. This translates into estimated revenues of about $34.16 million during that period from 2022 through the first half of 2025 plus an additional $4.60 million in realized sales of DazeD products in 2021."**

When asked if it was his estimate that only 80% of sales were realized, Hakala said it was Huang's estimate, "but there is [sic] numbers to support that." Hakala explained that for one year, invoices indicate that Defendants' net sales were around $17 million, while tax returns indicate net sales were only around $14 million. The Court understands Hakala to imply that this $3 million difference consists of unrealized sales, so only $14 million out of $17 million, or approximately 82% of sales, was realized for that year. Because Hakala evaluated the basis for Huang's estimate, he may testify regarding that estimate, subject to cross-examination.

Hakala also stated in his report:

"**The only product in the listed category for the Plaintiff's trademarks is the Dazed Bar product, which was discontinued in 2024 due to low sales volume. Estimated invoiced amounts have been only at approximately $1.274 million in 2023 and $85,030 in 2024, according to Huang. . . . While not nicotine products, the DazeD8 products related to cartridges and disposables based on invoices were about 70% of invoiced amounts in 2021, 63% of invoiced amounts in 2022, 38% of invoiced amounts in 2023, 10.8% of invoiced amounts in 2024, and 8.0% of invoiced amounts in the first half of 2025 according to Huang. Overall, DazeD8 cartridges and disposables represented about 29% of cumulative invoiced amounts estimated by Huang**."

Hakala confirmed that Huang was his source for these percentages and that he did not check any supporting documentation for these figures. Defendants have not provided any evidence showing that Hakala independently verified this data, so he will not be permitted to testify regarding section 5(d) and 5(e) of his report.

Hakala's report also noted that "Huang confirmed that the gross margins for the DazeD8 product line have experienced declines due to competition, shifting market preferences and trends, product returns, and bad debts." Hakala testified that, based on his conversation with Huang, it was his "understanding" that "the e-cig business is not profitable," though he concedes "there's no way to certify that . . . ." Again, this is simply Huang's own opinion, and Hakala will not be allowed to parrot Huang.

7D raises several other challenges based on the information that Hakala was provided. Hakala reviewed the Defendants' general ledgers but testified that he did not review any supporting documentation, relying on Huang to answer his questions. Huang also provided Hakala with a list of product sales, which Hakala believed was based on invoices. 7D frames that as an admission that Hakala "did not know what sources Huang's listings were based on," but that characterization is inaccurate. Hakala may rely on information provided by Defendants, and the accuracy of that information may be attacked on cross examination.

Hakala did not recall seeing expenses for streaming services that were billed to the business. Defendants argued that "Plaintiff's counsel [did not] present him with evidence that any such personal charges had been recorded as business expenses during the relevant period or that they were in any way material," but it is unclear why that would be necessary, as Defendants produced the general ledgers reflecting the personal expenses which Hakala listed among documents that he relied upon in making his report.

Hakala testified that he would typically normalize subscriptions for streaming services out. Regardless, Hakala did not believe it was necessary to look at bank or credit card statements to normalize out any improper expenses here because he relied on Defendants' tax returns and "cleaned up" financial statements. This belief may be attacked on cross examination.

7D also asserted that Hakala admitted he did not know which products were branded with the marks at issue, but the portion of his deposition cited by 7D does not support that assertion. Hakala did, however, admit that he did not know whether the DazeD mark was present on any given product, but that it was represented to him that the Dazed name was not prominent on certain products. Hakala is permitted to draw conclusions on the assumption that certain products do or do not have the infringing mark; this assumption may be probed on cross examination.

7D also emphasizes that Hakala was limited to the information Defendants provided, though he wanted more detail about Defendants' revenue and collections. While this may limit the weight given to Hakala's opinion, it does not preclude its admissibility. Additionally, although Hakala did not know that Huang was a Named Defendant and did not know that Huang testified that he had no personal knowledge of the companies' profits or profit margins, it is unclear what Hakala would have done differently if he had that knowledge. Hakala knew that Huang was the employee of a Defendant and thus already had reason to be skeptical of the information provided. Regardless, experts are permitted to rely on information given to them by their clients.

### **2. _Plaintiff's Motion to Exclude Sowers_**

Defendants hired Brian M. Sowers as a consumer perception expert to design surveys that test the likelihood of consumer confusion. Sowers conducted two surveys: the "Hemp Confusion Survey" and the "E-Liquid Confusion Survey." 7D argued that Sowers' survey methodology was unreliable. 7D alleged that the surveys contain the following flaws: (a) both surveys used an improper survey universe; (b) respondents to the Hemp Confusion Survey should have been required to view 7D's DAZE mark; (c) the Hemp Confusion Survey contained excessive distractions; (d) the E-Liquids Confusion Survey improperly used an Eveready format; (e) an answer to a question in the E-Liquids Confusion Survey was not properly coded as indicative of confusion; (f) no respondents in either survey were exposed to 7D's DAZE mark as a primary brand product.

### **a. Survey Universe**

7D alleged that Sowers used an improper universe for both surveys. In this instance, Sowers defined the survey universe as "potential customers of THC based products." Respondents qualified for participation in either survey if they: (1) were "21 or older"; (2) were "likely to purchase THC based products in the next six months"; and (3) had "at least some input in selecting which THC based product to purchase." Regarding the second element, respondents were asked which products they would be likely to purchase in the next six months, and the answer that participants needed to select to qualify was worded as follows: "THC based product (e.g., dab pen, cartridge, edibles, gummies)."

7D asserted that this universe is both over-and underinclusive. First, 7D argued that "THC based products" is an ambiguous term that covers a wide range of products that are not sold by Defendants. 7D stated that none of the parties sell marijuana in any form, only products derived from hemp, and there are many hemp-based products that no party sells, such as beverages and lotions. Indeed, in response to an interrogatory, Defendants listed all their products connected with any of the DAZED marks: non-disposable vaping cartridges, disposable vaping cartridges, gummies, tinctures, vaping concentrates, CBD flowers, and prerolled hemp cigarettes. Second, although 7D and Defendants have both sold nicotine vapes, respondents were not asked about nicotine usage or purchases.

### _Analysis_

Defendants claimed that 7D provides no support for its assertion that screening for THC users was flawed because no party sells marijuana. While the predominance of THC's association with marijuana is unclear from the record, it is true that THC may be derived from hemp or marijuana, and the surveys do not cull people who might buy marijuana-derived THC but not hemp-derived THC, though it is unclear how many consumers hold that preference. More troublesome for Defendants is the possibility that the survey universe included respondents who might be likely to buy THC based beverages or lotions, as these would fall under the category of "THC based products," but would not buy any of Defendants' products, such as a vape.

Defendants also asserted that 7D ignored its own definition of Defendants' products in its Amended Complaint: "Defendants are engaged in the manufacturing, distribution and sale of vaping devices and products which are vaped, smoked, or ingested, including e-liquids and products containing various levels and formulations of tetrahydrocannabinol (THC) (collectively 'Defendants' Products')." The parties parse this sentence differently: Defendants seem to read the phrase "containing various levels and formulations of tetrahydrocannabinol (THC)" as modifying both "e-liquids and products," meaning Defendants' e-liquids and products both contain THC, while 7D interprets that phrase as only modifying "products," meaning Defendants sell both (1) e-liquids that do not contain THC and (2) products that do contain THC. Defendants' interpretation is unreasonable, as e-liquids are commonly understood to contain nicotine. Additionally, in its Amended Complaint, 7D clearly conceptualizes its products as belonging to two separate categories: (1) "Plaintiff's E-Liquid Products," which includes "e-liquids and vaping devices for e-liquids," and (2) "Plaintiff's Hemp Products," which includes "products derived from hemp as well as devices for vaping hemp derived products." The Amended Complaint also clearly encompasses Defendants' nicotine products: 7D argued that the DazeD Bar mark, used in connection with Defendants' nicotine vapes, infringes on its trademarks; 7D attached photos of Defendants' Dazed Bar nicotine products; and 7D discussed Jawk's application for a trademark for "DAZED BAR in connection with electronic devices for the inhalation of nicotine-containing aerosols."

Accordingly, 7D's contention that the survey universes are both over-and under-inclusive is correct. The survey universes, however, are not so far off that the surveys have no probative value. Sowers' testimony will not be excluded and 7D may probe the survey flaws on cross-examination.

### **b. Use of DAZE Mark in Hemp Survey**

7D argued that the Hemp Confusion Survey respondents should have been required to view the DAZE mark. The Hemp Confusion Survey compared 7D's GRDNT branded hemp vape with Defendants' DAZED branded hemp vape. On the back of the GRDNT product packaging, 7 DAZE MFG is identified as the source of the product. Respondents were shown the front of the packaging, while images of the back and sides of the packages and front and back images of the actual product were shown in thumbnails and available for optional viewing.

7D argued that the survey should not have used GRDNT as a comparator; instead, a DAZE branded product should have been used. While the results of the survey are only indicative of confusion between the parties' hemp-based products, that limitation is not a reason for exclusion. After all, it is Defendants' theory that the hemp-and nicotine-based products are not competitively proximate. 7D on the other hand, believes that these products are competitively proximate, and 7D may therefore argue that the Hemp Confusion Survey has little weight at trial.

Next, 7D asserted that GRDNT should have been promoted as GRDNT by 7 DAZE in order to replicate market conditions and respondents should have been required to view the DAZE mark on the back of the GRDNT packaging. Defendants responded that the survey is consistent with market conditions because consumers would only see the front of the packages on the shelf unless they chose to pick up the product. As Sowers testified, "had we forced them to look at the back of the product, that is not how it is -- you don't put the back of the product up on the shelf." Indeed, 7D's expert explained that 7D's own survey only showed the front of packaging "because usually the focus as in this case, the focus is what's on the front of the package and that's what consumers are making decisions based off." Thus, according to both experts, this is not a flaw in the survey.

### **c. Excessive Distractions in Hemp Survey**

7D challenged the format of the Hemp Confusion survey. The Hemp Confusion Survey's design was adapted from the "Squirt" format.

The "Squirt" format presents a survey respondent with both of the conflicting marks. It does not assume that the respondent is familiar with the senior mark. The method of telling the respondent what the senior mark is can be either direct or subtle. A direct method is to ask in some fashion if the respondent thinks that goods or services bearing the parties' marks A and B are from the same source or different sources.

Additionally, respondents are commonly shown other products or asked questions that are not relevant to the results of the survey:

"In any survey where both Plaintiff and Defendant's marks are to be sequentially presented to respondents, it is suggested that the presentation not be temporally contiguous, but separated by the insertion of "distracter" questions or activities designed to occupy the respondent's attention for at least 10 to 15 seconds. Scholarly research indicates that having respondents distracted for five to ten seconds is sufficient to remove contents from immediate or short-term memory, although not long-term memory."

In the Hemp Confusion Survey, after being shown 7D's product, respondents were asked a series of distractor questions:

"Respondents were asked how often they watch television (Q1), to provide one or two of their favorite television programs (Q2), what television programs they watched recently that they did not like (Q3), and if in the past six months they had read any books (Q4). Respondents who answered "No" or "Don't know/Unsure" to Q4 skipped over Q5. If respondents selected "Yes" in Q4, they were asked what one or two books they enjoyed reading the most (Q5)."

Respondents were then shown Defendants' DazeD branded product and two other THC products in a random order. After each product, respondents were asked a series of questions to measure their beliefs about the connection between 7D's product and these products. Respondents answer nine likelihood-of-confusion questions after each product, so respondents will answer either five, fourteen, or twenty-three intervening questions in total.

7D argued that the excessive number of distractor questions removed respondents' perception of 7D's product from their short-term memory. 7D believes that "this defeats the whole purpose of a Squirt survey, which is to test confusion among marks that are not top-of-mind, but that may nonetheless be confused with a competitor's mark because both marks are encountered within a short time."

Defendants responded that the goal of the surveys is to test respondents' long-term, not short-term, memory. Sowers did measure how long respondents spent answering the distractor questions but estimated that respondents should not have taken more than 30 to 60 seconds. Sowers also apparently also testified that "the sequential format is the preferred method." Sowers' testimony will therefore not be excluded by the Court on this basis.

### **d. Use of Eveready Format in E-Liquids Survey**

Without any citation to authority, 7D argued that the Eveready format "is only proper when the senior user's mark is sufficiently well known in the general public such that it can be named in an unaided 'top of mind' response.'" It is therefore not at all clear that the Eveready format was inappropriate for the E-Liquid Confusion Survey.

### **e. "DAZED" Response in E-Liquids Survey**

7D argued that its customers "often do not distinguish between the present tense DAZE or the past tense DAZED," so when "respondents for [the E-Liquid Confusion Survey] stated that the Defendants' product was put out by "DAZED[,]" they could have been referring to Defendant or 7D. 7D asserted that Sowers did not code these responses as confused or otherwise account for that possibility. When Sowers was asked if there was any way of telling whether respondents who answered "Dazed" were actually thinking about 7D, Sowers replied in the affirmative:

"**There is. You have to look at the responses across the respondent and not just for one particular question. So one of those is to ask—the next question is what other brands or products are put out by the company that puts this out. So you can look at that question for one to see if anybody mentions anything—if they mention nicotine products or something like that, I might be conservative and give that to Plaintiff which is what I did here. Or you can look across to see if there is anything in any of the opening responses and suggest they are thinking about Daze and not Dazed. And I think if they are saying Dazed, what you're seeing in that data why do you say that because that is what it says on the package. So there is no evidence they are thinking about the Plaintiff, but where there was ambiguity, I gave that to Plaintiff to be conservative**."

Thus, 7D's assertion that Sowers did nothing to account for possible confusion is inaccurate. If 7D finds Sowers' response insufficient, they may attack it on cross examination.

### **f. Exposure to DAZE as a Primary Brand**

Finally, 7D argued that the survey respondents were never exposed to any DAZE products where DAZE was the primary brand on the front of the packaging: in the Hemp Confusion Survey, respondents were shown GRDNT by 7 DAZE, and in the E-Liquid Confusion Survey, respondents were only shown Defendant's DAZED hemp vape.

7D did not explain why the fact that no respondents were ever exposed to DAZE as a primary brand renders the surveys unreliable, so Sowers' testimony will not be excluded on that basis.

## **Held**

- The Court granted in part and denied in part Plaintiff's motion to exclude the testimony of Dr. Scott Hakala.
- The Court denied Plaintiff's motion to exclude the testimony of Brian M. Sowers.

## **Key Takeaway**

An expert's "wholesale adoption of [a party's] estimates, without revealing or apparently even evaluating the bases for those estimates, goes beyond relying on facts or data and instead cloaks unexamined assumptions in the authority of expert analysis." Experts may, however, rely on data supplied by their clients when forming their opinions.

## **Case Details:**

| Case Caption: | 7D Holdings, LLC V. Jawk Holdings LLC |
| --- | --- |
| Docket Number: | 1:24cv33 |
| Court Name: | United States District Court for the Western District of Kentucky, Bowling Green Division |
| Order Date: | August 14, 2026 |

---

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