Marketing Expert Witness’ Testimony on Consumer Confusion Deemed Speculative

Plaintiff IEP Technologies, LLC brought this action against Defendants KPM Analytics, Incorporated f/k/a Statera Analytics, Incorporated and KPM Analytics North America Corporation f/k/a Process Sensors Corporation (collectively “KPM”) for allegedly violating IEP’s trademark. The complaint asserts violations of the Lanham Act, besides a claim for common law trademark infringement and unfair competition.

Genuine disputes of material fact exist regarding the likelihood of confusion between the parties’ hexagonal marks. Given the noticeable similarity of the marks, and the fact that both IEP and KPM sell and advertise similar products to the same customer base, there is a potential for actual consumer confusion or bad faith by KPM in selecting its mark.

Following discovery, the parties filed competing motions for summary judgment on all of IEP’s claims. KPM filed a motion exclude the report and testimony of IEP’s proffered industry expert, Steve Egenolf.

Marketing Expert Witness

Steven Egenolf joined CSC Publishing as a marketing and advertising manager in 1998. He was the eastern sales manager for CSC Publishing from May of 1998 through August of 2021. Egenolf has two decades of experience working with hundreds of companies in the powder and bulk processing industry and reviewing their marketing activities. He has regularly attended industry trade shows, including the Bulk and Powder Solids trade show attended by KPM and IEP in 2018.

Want to know more about the challenges Steve Egenolf has faced? Get the full details with our Challenge Study report.  

Discussion by the Court

KPM argued that IEP’s proposed marketing expert witness, Steve Egenolf, should be barred from testifying because:

1. He failed to use reliable principles and methods.
2. He is not qualified to opine on whether customers are likely to be confused by KPM’s mark.
3. His report and testimony would not assist the jury.

Reliability of Methods

KPM claimed Egenolf’s methods were unreliable because he did not conduct a consumer survey. Although consumer surveys are a common tool for evaluating the likelihood of confusion, the Court noted they are not mandatory.

The Court noted that Egenolf did not intend to testify about the ultimate factual issue of whether confusion was likely. Instead, his testimony focused on the eight Pignons factors, which guide courts in assessing the likelihood of confusion. These factors include considerations such as the similarity of the marks, products, and classes of prospective purchasers. Courts generally regard expert testimony on these factors as valuable.

The Court further observed that expertise in the relevant industry can compensate for the absence of a consumer survey. Egenolf’s testimony, grounded in his extensive industry experience, sought to address these factors rather than proving actual confusion.

The Court held that while Egenolf did not rely on a survey, his analysis of the Pignons factors, based on his industry expertise, was consistent with legal precedents and provided relevant insights for evaluating the likelihood of confusion.

Qualifications of the Expert

KPM argued that Egenolf lacked qualifications to address the Pignons factors, claiming he was neither a trademark expert nor experienced in the relevant industry.

His report draws on his extensive experiences to analyze the likelihood of confusion factors by opining, for example, that he has never seen another hexagon logo besides IEP’s and KPM’s trademarks. Given the depth of his experience in the powder and bulk processing industry, he need not, as KPM contends, have prior experience in other trademark cases.

Egenolf’s experience qualifies him to opine on several of the Pignons factors—namely, the similarity between the two marks, the similarity of the goods, the relationship between the parties’ channels of trade and advertising, the classes of prospective purchasers, and the strength of IEP’s mark.

But the Court agrees with KPM that Egenolf lacks the personal knowledge or experience to testify as to the sixth and seventh factors—namely, evidence of actual consumer confusion and KPM’s intent in adopting its mark. His report discloses no basis for his opinions on those factors, and the paragraphs in his report that touch on those factors are entirely speculative.

Improper Conjecture

The Court found that Egenolf’s report included speculative claims about how others in the industry might view the likelihood of confusion factors he analyzed. The report repeatedly asserted that “people in the industry would reach the same conclusion” as he did regarding these factors. However, these statements were deemed speculative without a consumer survey or other direct evidence.

The Court concluded that Egenolf’s statements about what other people in the industry might conclude lacked evidentiary support.

Jury Assistance

KPM argued that Egenolf’s testimony would not assist the jury because laypeople could independently evaluate the similarity of the trademarks. The Court clarified that Egenolf could not testify about ultimate issues, such as evidence of actual consumer confusion, KPM’s intent in adopting its mark, or determine whether confusion is likely, which falls upon the jury to decide. His testimony about the remaining likelihood of confusion factors, however, could help the jury given his experience in the relevant powder and bulk processing industry.

Held

The Court granted in part and denied in part KPM’s motion to exclude the expert testimony and report of Plaintiff’s marketing expert witness, Steve Egenolf. The Court held that certain portions of the report are stricken and Egenolf may not testify about:

1)”people in the industry would come to the same conclusion” as him regarding the Pignons factors,

(2) regarding evidence of actual confusion, and

(3) concerning KPM’s intent in adopting its mark. 

Key Takeaway:

While Egenolf’s industry experience in the relevant powder and bulk processing industry was deemed valuable for analyzing several Pignons factors, the Court decided that Egenolf will not be permitted to testify about evidence of actual consumer confusion, KPM’s intent in adopting its mark, or the ultimate issue of whether confusion is likely, which falls upon the jury to decide.

Case Details:

Case caption:	Iep Techs., LLC v. KPM analytics, Inc.
Docket Number:	1:21cv10417
Court:	United States District Court, Massachusetts (Boston)
Dated:	December 23, 2024