Marketing Expert’s Testimony Was Admitted Despite His Lack of Legal Credentials
Posted on September 15, 2025 by Expert Witness Profiler
X Social Media LLC (“X Social Media”) and X Corp. both use the letter “X” in association with closely related advertising services. Put simply, X Corp. is an online and app-based social-media platform that allows users to create and share a wide range of digital content, including advertisements. X Social Media is an advertising agency that designs and runs social-media advertising campaigns for mass-tort and class-action law firms.
This is a case for trademark infringement and related claims concerning the parties’ respective use of the letter “X” in connection with distinct product and service offerings.
Both parties retained experts to advance their respective theories of the case. Defendant offered (1) marketing scholar Peter Golder and (2) survey practitioner Hal Poret. Professor Golder analyzed the product markets in which the parties operate and opines that reverse confusion is improbable. Poret conducted an Eveready consumer-perception survey to test for the likelihood of reverse confusion and found minimal confusion.
Plaintiff offered Professor David J. Franklyn, a trademark-law scholar, to rebut both Golder and Poret. Professor David J. Franklyn disputed Golder’s market-structure analysis and critiques Poret for limiting his survey universe to representatives of law firms and advertising agencies, contending that Poret should also have surveyed the consumers who view Plaintiff’s ads on social media.
Both parties filed motions to exclude aspects of the opposing experts’ opinions under Daubert and Federal Rule of Evidence 702.
Marketing Expert Witness
Professor Peter N. Golder is a Professor of Marketing at the Tuck School of Business at Dartmouth College in Hanover, New Hampshire.
His background includes a Ph.D. in. marketing from the University of Southern California, decades of academic appointments in marketing, and prior experience providing expert marketing testimony in litigation.
Survey Research Expert Witness
Hal Poret is a public opinion researcher with a master’s degree in mathematics and a law degree from Harvard Law School. Poret has personally designed, supervised, and implemented well over 1,000 surveys regarding the perceptions and opinions of consumers.
He has been accepted as an expert in survey research on numerous occasions by U.S. District Courts, the Trademark Trial and Appeal Board, the ITC, the FCC, the FTC, and the National Advertising Division of the Council of Better Business Bureaus (NAD).
Intellectual Property Expert Witness
David Joel Franklyn is currently a law professor at Arizona State University, with an appointment in the Sandra Day O’Connor College of Law. He is also the Executive Director of the McCarthy Institute at ASU Law, which is focused on scholarship and research in intellectual property law, with particular emphasis in the areas of trademark law, branding and consumer perceptions related to brands.
Franklyn has published extensively on issues relating to intellectual property law and is editor-in-chief and co-author of McCarthy’s Desk Encyclopedia of Intellectual Property Law. Between 2018 and 2021, Franklyn also held a joint appointment at Golden Gate University’s law school and business school.
Discussion by the Court
The Court discussed the challenged opinions of Professor Golder, Poret, and Professor Franklyn in turn.
A. Professor Peter Golder
Defendant retained Golder to analyze the structure of the parties’ product markets, the sophistication of Plaintiffs’ consumers, and the nature of Plaintiffs’ sales process and to “[d]iscuss whether [these] assessments” are “consistent or inconsistent with Plaintiff’s theory of reverse confusion.”
Plaintiff filed a motion to exclude Golder under Rules 702 and 403, contending that he is unqualified, offers improper legal conclusions, ignores the Eleventh Circuit pattern jury instructions for trademark-infringement cases, disregards evidence of actual confusion, relies on irrelevant third-party marks, and “cherry-picks” facts.
1. Summary of Golder’s Opinions
Golder opined that similar brand names can coexist without consumer confusion when they operate in distinct ‘product categories,’ which he illustrated with third-party examples such as “Delta”—the brand-name of an airline, a faucet company, and a dental insurer.
He further noted that Defendant’s public SEC filings identify technology companies such as Meta, Alphabet, Microsoft, and TikTok—not advertising agencies like Plaintiff—as competitors.
He opines that the Plaintiffs’ theory of reverse confusion is “inconsistent with both the documentary record and marketing literature” given the parties’ distinct product categories, the sophistication of Plaintiffs’ customers, and the nature of Plaintiffs’ sales process.
2. Plaintiff’s Daubert Challenges to Professor Golder
Plaintiff first argued that Golder is “not qualified as a trademark law expert” because he is neither a “trademark attorney nor former-USPTO commissioner.” However, Defendant has proffered Golder as a marketing expert, not a legal expert. Evaluated in his proffered field, the Court finds him qualified under Rule 702.
Plaintiff next contended that Golder impermissibly offered legal conclusions, citing his statement that “Plaintiff’s theory of reverse confusion is not consistent with the documentary evidence in this matter or with the marketing literature.” Considered in context, the challenged statements are tied to marketing concepts and record evidence, and Golder expressly disclaimed offering a “legal opinion on confusion.” As a result, the Court rejected Plaintiffs’ argument.
Plaintiff also sought exclusion because Golder did not consider evidence of actual confusion. Since this matter is set for a bench trial, where concerns about the “jury’s expectations” carry no weight, the Court will evaluate evidence of actual confusion independently and consider Golder’s testimony only for its permissible purpose.
Plaintiff next challenged as “irrelevant and misleading” Golder’s reliance on third-party brand examples such as Delta, Dove, Morningstar, Pandora, and Tiffany. To the extent Golder’s examples do not correspond perfectly to this case, the Court held that “objections to the inadequacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility.”
Finally, Plaintiff argued that Golder “cherry-picked” evidence by declining to evaluate evidence of actual confusion and by emphasizing factors favorable to Defendant. In this case, Golder disclosed the materials he considered and applied recognized marketing principles to the facts of this case.
The Court overruled the Plaintiffs’ cherry-picking objection under Rule 702 because it does not establish unreliability.
B. Hal Poret
Defendant retained Hal Poret, a consumer-survey expert, “to design and conduct a scientific survey” assessing whether “Defendant’s use of its X mark creates a likelihood of reverse confusion with Plaintiff.”
Poret did so and concluded that “Defendant’s use of its X mark does not create a likelihood of confusion with Plaintiff.” Plaintiff filed a motion to exclude his testimony, contending that his survey is unreliable because: (1) it lacked a control group; (2) it used the Eveready format rather than Squirt (3) it relied on flawed coding assumptions; and (4) it tested an underinclusive universe.
1. Summary of Poret’s Opinions
Poret conducted an Eveready survey, in which respondents are shown only the senior user’s mark (here, Plaintiffs “X SocialMedia”) and asked questions to assess whether the respondents associate that mark with the junior user’s mark (here, Defendant’s “X”).
Poret administered the survey online to 200 respondents who had been screened to ensure they worked for law firms or marketing firms that had used or planned to use social media advertising services—the population he identified as Plaintiffs’ customer base.
According to Poret, only 4.0% of respondents provided answers that “suggest reverse confusion” between Plaintiff and Defendant.
2. Plaintiff’s Daubert Challenges to Poret
Plaintiff first argued that Poret’s survey is unreliable because it lacked a control group. Plaintiff argued that without a control, the survey cannot distinguish between genuine confusion and background “noise.” Poret acknowledged the omission but explained that controls are most useful where the initial confusion rate is high enough that noise could materially affect the result. Here, however, “the test group rate of confusion was already so low that it shows a lack of confusion even without taking any potential noise into consideration.”
The Court held that the absence of a control group does not render a survey inadmissible under Rule 702.
Plaintiff next challenged Poret’s use of the Eveready format, arguing it is inappropriate here because it presumes that Defendant’s mark is top-of-mind. The dispute over whether Eveready or Squirt is more probative here is for the trier of fact to decide; it does not implicate methodological reliability under Rule 702.
The Court held that Poret’s survey will not be excluded merely because Plaintiff believes a Squirt survey would be more probative since both Eveready and Squirt formats are accepted in the industry.
Plaintiff also argued Poret’s coding decisions artificially lowered the measured confusion rate. But Plaintiffs’ objections boil down to the assertion that Poret misused a survey method that “in the abstract, is reliable.” It is well-established that “the identification of such flaws in generally reliable scientific evidence is precisely the role of cross-examination.”
Finally, Plaintiff argued that the survey universe was underinclusive because it did not include consumers who merely view Plaintiffs’ ads on Facebook and instead exclusively sampled representatives of legal and marketing firms. However, when assessing reverse confusion, limiting the universe to the senior user’s customers is a generally accepted approach.
C. David J. Franklyn
Defendant filed a motion to exclude two categories of Franklyn’s opinions: (1) all of his critiques of Golder, on the grounds that Franklyn is not qualified to offer marketing opinions and, in any event, his critiques lack reliable methods and sufficient factual support; and (2) his opinion that Poret’s survey used an underinclusive universe.
1. Summary of Franklyn’s Opinions
a. Critiques of Golder
Franklyn disputed Golder’s claim that the parties operate in distinct product categories, opining that the parties “operate in highly overlapping product categories and often provide nearly identical services.”
He criticized Golder’s reliance on third-party brand analogies such as “Delta,” contending that those examples are inapposite because here “the product category of [Defendant] is the brand name of [Plaintiff].”
b. Critiques of Poret
Franklyn criticized Poret’s reverse-confusion survey for, among other things, using an “underinclusive universe” that “fails to account for consumers” who encounter the advertisements Plaintiff creates for its law-firm clients. Poret surveyed only “representatives of legal practices and advertising/marketing firm[s],” and Franklyn opined that the perceptions of consumers exposed to Plaintiffs ads may negatively influence the “viability of the advertising services being provided by [Plaintiff].”
2. Defendant’s Daubert Challenge to Professor Franklyn’s Critiques of Professor Golder
Defendant first argued that Franklyn is unqualified to rebut Golder. Franklyn considers himself an expert in “marketing as it relates to trademark law.” But his academic training is in history, philosophy, religion, and law, and his curriculum vitae identified no degrees, work experience, or professional memberships in marketing or advertising disciplines. He has never practiced marketing, has never attended a marketing conference, and did not review the literature on which Golder relied.
Accordingly, the Court concluded that Plaintiff has not met its burden under Rule 702 to establish that Franklyn is qualified to rebut Golder’s marketing opinions.
Setting aside his qualifications, the Court held that Franklyn’s critiques of Golder failed under Rule 702 because they are not based on reliable principles and methods.
Franklyn admitted that he “didn’t use marketing principles” at all, did not review the marketing literature Golder cited—calling it “mumbo jumbo”—and did not conduct empirical consumer research.
3. Defendant‘s Daubert Challenge to Franklyn’s Critiques of Poret
Franklyn contended that Poret’s survey universe was “underinclusive” because it “failed to account for consumers who will encounter [Plaintiff’s] marks in the form of the advertisements that [Plaintiff] produces on behalf of [its] direct clients.”
The Court found Franklyn’s view that a reverse-confusion survey must include individuals beyond the senior user’s actual customer base is methodologically unsound. The Eleventh Circuit has made clear that the relevant universe in a reverse-confusion case consists of the senior user’s customers.
Moreover, Franklyn’s critique that consumers might view advertisements containing Plaintiff’s name and logo is also predicated on a factual assumption that is unsupported by the record—that members of the general public exposed to Plaintiff’s clients’ Facebook ads actually see Plaintiff’s mark. He identifies no example of a consumer-facing advertisement containing Plaintiff’s name or logo.
Held
The Court denied the Plaintiff’s motion to exclude the opinions of Peter Golder and Hal Poret but granted the Defendant’s motion to exclude the testimony of David J. Franklyn.
Key Takeaway:
Rule 702, however, requires only that an expert be qualified “by knowledge, skill, experience, training, or education” to testify competently “regarding the matters he intends to address.” Nothing in Rule 702 demands experts to have legal credentials.
Please refer to the blog previously published about this case:
Intellectual Property Expert Witness’ Untimely Affirmative Opinions Excluded
Case Details:
| Case Caption: | X Social Media, LLC V. X Corp. |
| Docket Number: | 6:23cv1903 |
| Court Name: | United States District Court, Florida Middle |
| Order Date: | September 05, 2025 |
