It is always important to take the pulse of your industry at the end of the year, delving deeper into important topics that were not urgent during the year but that gradually help shape your business practice. That is why we are glad to see IMS Expert Services’ December issue of BullsEye reviewing the top ten cases of the year relating to expert witness testimony.
In this post we highlight the “Delicious” case, which erupted whenVictoria’s Secret began selling “a hot pink tank top with the word “Delicious” written in silver across the chest.” Fortune Dynamic, the owner of the Delicious trademark for a line of footwear, brought suit against the lingerie company, only to have its complaint dismissed on summary judgment after the trial
court issued a ruling excluding the testimony of Fortune Dynamic’s expert witness.
As BullsEye explains, “…The expert witness conducted an online survey of young women to determine the likelihood of confusion between Fortune’s footwear and Victoria’s Secret’s tank top. Based on the results of the survey, the expert concluded that there was a likelihood of confusion among consumers between the two products.
The trial court ruled that this evidence was not reliable because the survey compared the two products side-by-side and failed to replicate real-world conditions. But on appeal to the 9th Circuit, the appellate panel reversed the lower court…”
Read more at: IMS BullsEye December 2010.
Case: Fortune Dynamic Inc. v. Victoria’s Secret Stores Brand Management Inc., ___ F.2d ___ (9th Cir. Aug. 19, 2010).