---
title: "Marketing Expert’s Testimony on Consumer Confusion Admitted"
meta:
  "og:description": "Exclusion of the testimony of the marketing expert was not warranted due to the alleged use of ambiguous terms"
  "og:title": "Marketing Expert’s Testimony on Consumer Confusion Admitted"
  author: "Expert Witness Profiler"
  description: "Exclusion of the testimony of the marketing expert was not warranted due to the alleged use of ambiguous terms"
---

# Marketing Expert’s Testimony on Consumer Confusion Admitted

Posted on September 26, 2025 by Expert Witness Profiler

Defendant Learneo, Inc., a Delaware corporation with a principal place of business in Redwood City, California, operates a website named Course Hero, an online learning platform of course-specific study resources. In particular, this action involves alleged unlawful conduct on Course Hero, where users upload materials, such as study resources, and access materials shared by others.

Consequently, Plaintiff Post University accused Learneo, Inc. of (1) direct copyright infringement, (2) contributory copyright infringement, (3) vicarious copyright infringement, (4) removal of copyright management information (“CMI”) in violation of the Digital Millennium Copyright Act (“DMCA”), (5) trademark infringement in violation of the Lanham Act, (6) false designation of origin in violation of the Lanham Act, (7) violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), (8) unjust enrichment, and (9) common law unfair competition.

In support of its claims, Plaintiff retained Dr. [Yoram (Jerry) Wind](https://expertwitnessprofiler.com/expert-witness/Yoram%20(Jerry)-Wind/1527921) to conduct, analyze, and opine on prospective consumer confusion.

In response, Defendant filed a motion to exclude the testimony of Wind pursuant to Federal Rules of Evidence [403](https://www.law.cornell.edu/rules/fre/rule_403#:~:text=The%20court%20may%20exclude%20relevant,or%20needlessly%20presenting%20cumulative%20evidence.) and [702](https://www.law.cornell.edu/rules/fre/rule_702#:~:text=Rule%20702%20sets%20forth%20the,is%20a%20relatively%20narrow%20inquiry.).

## **Marketing Expert Witness**

[Yoram (Jerry) Wind](https://expertwitnessprofiler.com/expert-witness/Yoram%20(Jerry)-Wind/1527921), PhD. is the Lauder Professor Emeritus and Professor of Marketing at the Wharton School of the University of Pennsylvania, having taught graduate courses relating to executive development and marketing since 1967, and worked as Director for the SEI Center for Advanced Studies in Management.

Wind joined the Wharton faculty in January 1967, upon receipt of his doctorate from Stanford University, and was granted Emeritus status in July 2017.

[Want to know more about the challenges Yoram (Jerry) Wind has faced? Get the full details with our Challenge Study report](https://expertwitnessprofiler.com/order/add?eId=1527921&amp;pId=3).

## **Discussion by the Court**

Defendant filed a motion to exclude Wind’s testimony, asserting that: (1) his surveys were fundamentally flawed as they improperly excluded educators during the screening portion, (2) his surveys were unreliable as they relied on unclear and undefined terms, including “document,” “material,” and “owns,” (3) his initial survey used improperly designed controls, (4) his coding results could not be replicated, (5) his understanding of the definition of CMI was incorrect, and (5) his conclusions are based on an unreliable application of his methodology.

### **A.** **Wind’s Qualifications**

Defendant has not attempted to challenge Wind’s qualifications, nor could it. As part of a career spanning over four decades, Wind has been qualified as a marketing and survey research expert in federal court, where he has conducted and evaluated marketing and consumer research for use in litigation.

The Court therefore found that Wind is qualified to provide expert testimony on consumer confusion as it relates to Plaintiff’s claims against Defendant.

### **B.** **Reliability of Wind’s Testimony**

#### _**1. Defendant’s Allegations that the Surveys Improperly Excluded Educators**_

Defendant contended that Wind improperly excluded educators from the surveys, as they are one of Defendant’s only two target demographics. According to Defendant, excluding educators compromises the probative value of the survey because it fails to capture the responses from all potential consumers of Course Hero.

Here, the purported testing of the wrong universe, as Defendant suggested, did not indicate that the surveys’ probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

Defendant’s sweeping contention that educators must be included in the universe is belied by evidence showing that college educators made up only a fraction of Court Hero’s accountholders in 2021, including statistics that educators make up less than 1% of account holders, and testimony from Defendant’s VP of Marketing stating that “there are a lot more students than there are educators.” Further, Defendant did not seriously dispute Wind’s explanation that it is generally accepted and custom to exclude individuals who works in the same industry as the survey that is being conducted. It is thus appropriate for Defendant to raise its criticisms about the survey’s academia-based exclusion before the jury.

#### _**2.**_ _**Defendant’s Allegations of Ambiguous Terms**_

Defendant contended that the survey questions using terms like “document,” “material,” and “owns” are ambiguous because almost all of the test stimuli show one document (the Post University material) within another document (the Course Hero webpage), and then ask questions about the “document.”

Defendant asserted that the use of the terms “document” and “material” interchangeably in Wind’s survey make it impossible to discern whether survey respondents understood “document” or “material” in the question to mean the alleged Post University material (green), the Course Hero webpage (red), or something else entirely.

However, it would be too wide a stretch for this Court to conclude that the failure to define “document” and “materials,” which are terms that jurors will have necessarily dealt with throughout their lives, would undermine the probative value of the survey.

Defendant next contended that the term “owns,” as used in Wind’s survey, is improper for being ambiguous and for asking the survey respondents to opine as to a legal question.

However, the survey did not present respondents with the legal issue of copyright ownership; rather, it asked the respondents to provide their impressions about who they believed had “owned” a document. Thus, the term “owns” bore no resemblance to the spectrum of cases cited by Defendant where exclusion was warranted due to an ambiguous term.

### **_3._ _Defendant’s Allegations of Improper Controls_**

The Court finds, too, that Defendant’s critiques of Wind’s control stimuli are overstated. Defendant contended that Wind’s initial survey is unreliable as the control stimuli failed to isolate the alleged elements of the Course Hero website underlying any of Plaintiff’s claims, thus making it impossible to determine which elements, if any, contributed to confusion. Further, Defendant argued that Wind’s control stimuli removed an excessive amount of Course Hero website elements and improperly added a sentence, unilaterally drafted by Wind, to the footer of the stimuli, which stated, “Course Hero did not author and does not own this study resource.”

 To be clear, consistent with Defendant’s contention, the absence of an effective control could certainly be a factor that damages the reliability of a survey. No such combinations of major flaws are found here. Thus, while a factfinder may not give Wind’s testimony much weight due to his removal of elements of the Course Hero website and addition of the footer, “neither science nor law mandate the [requested] exclusion” here.

#### _**4. Defendant’s Allegations of Wind’s Unreliable Coding Methodology**_

Defendant identified two theories upon which Wind’s coding methodology is unreliable. First, Defendant argued that Wind’s coding instruction did not provide sufficient guidance to produce reliable results, as Wind was unable to reproduce his coders’ classifications based on his own coding instructions. Specifically, Defendant noted that Wind was only able to match his coders’ classifications four out of fourteen times (28.6%) during a deposition. Second, Defendant argued that Wind failed to properly to isolate the alleged CMI, as his understanding of the definition of CMI was incorrect.

While it may be that it was impossible for Defendant to question Wind about 2,250 respondents during a deposition, the Court held that the emphasis on ten purported testimonial errors by Wind did not show that the methodology used was completely unreliable. Defendant did not conduct its own survey showing inconsistent results with Wind’s results and failed to show that it is impossible to reproduce Wind’s coding scheme.

Defendant’s allegation that Wind’s understanding of CMI was overly broad similarly failed to establish that there was unreliable coding methodology. As relevant here, Wind instructed his coders to look for the following categories of information in the “confused” responses to the test stimuli: Course Hero Logo, Course Hero Advertisement, Course Hero Banner Ads, Course Hero Copyright Notice, Course Hero Website / Link, Course Hero Watermark, Course Hero name on document, and Course Hero Other. Thus, Wind’s guidance to his coders is wholly consistent with the plain text of the DMCA, which defines CMI as information “conveyed in connection with” copies of a work, including “other information identifying the work[.]”

#### _**5. Defendant’s Allegations of Wind’s Faulty Conclusions**_

First, Defendant argued that Wind’s opinion as to CMI confusion failed to account for background noise in the control stimulus. Specifically, Defendant argued that several of the control stimuli contained the Course Hero footer watermark, which Plaintiff alleges to be false CMI. But that contention did not show that Wind’s findings are “speculative or conjectural or based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison.”

Second, Defendant argued that Wind’s reported measures of trademark confusion are below the level that courts require for experts to opine that there is a likelihood of confusion, i.e., 15%. But Defendant did not offer any binding law for the proposition that an expert must be precluded from testifying if a survey’s overall confusion is less than 15%.

Finally, the Court is not persuaded that the Defendant has shown that Wind’s conclusions are unreliable.

1.

## **Held**

The Court denied the Defendant’s motion to exclude the testimony of Yoram Jerry Wind.

## **Key Takeaways:**

- The fact that a survey used a control that could have been ‘stronger’ or ‘better’ may mean it is entitled to less weight, it does not mean that the survey does not provide relevant information.

- Defendant showing Wind struggling to make consistent coding determinations as to a handful of responses during a deposition did not meet the threshold to exclude expert testimony: that “there is simply too great an analytical gap between the data and the opinion proffered.”

## **Case Details:**

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