Bobak Sausage Co. v. A & J Seven Bridges, Inc. d/b/a Bobak’s Signature Events, No. 07 C 4718, Slip Op. (N.D. Ill. Apr. 26, 2010) (Dow, Jr.).
Judge Dow denied without prejudice defendants’ Fed. R. Evid. 702 motion to exclude plaintiff’s trademark survey expert in this Lanham Act case involving plaintiff’s Bobak marks. Plaintiff’s eight question survey was flawed. The survey’s relevant universe was too broad.
Metropolitan Chicago residents were surveyed, not just those in the market for the parties’ products. The survey was also underinclusive because it excluded businesses, a large percentage of defendants’ business. Additionally, the survey asked leading questions, and did not use the parties’ visual marks. Finally, the survey used only minimal controls.
Despite having identified technical defects in the survey, the Court did not exclude the survey. Although the defects substantially limited the usefulness of the survey, the survey was not one of the "rare" ones that are "completely unhelpful" to the trier of fact. But the Court stressed that its decision was preliminary. And the Court was more comfortable allowing a flawed survey because it was the trier of fact.