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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 1 of 57
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF ARIZONA
`
`BBK Tobacco & Foods LLP,
`
`
`Plaintiff,
`
`
`v.
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`Central Coast Agriculture Incorporated, et
`al.,
`
`
`No. CV-19-05216-PHX-MTL
`
`ORDER
`
`
`
`
`
`
`Defendants.
`
`
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`This action involves a trademark dispute between Plaintiff BBK Tobacco &
`
`Foods, LLP (“BBK”) and Defendant Central Coast Agriculture Incorporated (“CCA”).
`
`Before the Court are numerous motions filed by the parties, including cross motions for
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`summary judgment (Docs. 203, 218, 293), and motions to exclude expert testimony
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`(Docs. 298, 302, 304, 305, 306, 307, 308, 311, 314, 317, 433). The motions are fully
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`briefed, oral argument was held on June 16, 2022. (Doc. 416.) The Court rules as follows.
`
`I.
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`
`
`BACKGROUND
`
`BBK manufactures, distributes, and sells smoking-related products bearing its
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`trademarked “RAW” branding.1 BBK’s RAW branded products include cigarette rolling
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`papers; smoking accessories; merchandise such as hats, t-shirts, and hoodies; and
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`information services regarding these and other products.2 BBK has sold RAW branded
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`1 BBK’s marks
`include: “RAW,” “RAW ORGANIC,” “RAW ARTESANO,”
`“SUPERNATURAL RAW,” “RAW CONNOISSEUR,” and “RAW BLACK.”
`2 BBK maintains multiple internet domains incorporating the RAW designation, including
`www.rawthentic.com, www.rawsmoke.com, and www.rawfoundation.com. It also uses
`the Instagram handles @rawkandroll and @rawlife247.com and the Facebook page
`entitled “RAW Rolling Paper.”
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 2 of 57
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`products for almost two decades and such products are now sold in retail locations in all
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`50 states.
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`CCA’s predecessors were formed around 2008, when Thomas Martin and Khalid
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`Al-Naser began growing and trading cannabis with cannabis patients under California’s
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`Compassionate Use Act. In 2012, Martin developed a process for using carbon dioxide
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`to extract cannabis-infused oil to use in making medical cannabis concentrates. At that
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`time, most cannabis concentrate brands were using a high-heat extraction process that
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`“cooked” their concentrates. Thus, Martin’s process, by comparison, yielded “raw”
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`concentrate. In late 2013, Martin and Al-Naser began delivering packaged, finished
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`cannabis concentrates branded “RawCo2” to collectives.3 Shortly thereafter, Al-Naser’s
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`nonprofit, GSS, began selling RawCo2 to California dispensaries. GSS also sold
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`concentrate products branded “Raw Hashish,” “RawSin,” and “Raw Gold.” In 2014,
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`Martin and Al-Naser, along with some third-party dispensaries, began marketing their
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`concentrate products on social media. Then, in or around November 2014, Martin began
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`using the term “Raw Gardener” to delineate his products and he and Al-Naser began
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`referring to their social media followers as the “RawTribe.”
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`Approximately two years later, around October 2016, CCA was formed and
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`acquired GSS’s assets, including the rights to the RawCo2, Raw Hashish, RawSin, and
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`Raw Gold brands.4 Upon CCA’s formation, Martin transitioned from using “Raw
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`Gardener” to “Raw Garden” to identify his products. In March 2016, CCA sold its first
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`Raw Garden branded concentrate products.5 CCA now markets and sells its cannabis
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`products exclusively under the Raw Garden brand and exclusively through California-
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`licensed dispensaries and mobile delivery services.
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`
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`BBK and CCA (or its predecessors) have in the past attended many of the same
`
`
`3 BBK asserts that RawCo2 was an extraction process, not a product. (See Doc. 246 at 8
`n.2; Doc. 229-5).
`4 BBK claims that CCA did not acquire GSS’s assets and accordingly is not a legal
`successor to GSS. (Doc. 246 at 8; Doc. 229-3 at 3.)
`5 BBK again objects to CCA’s assertion. It contends that, prior to 2018, CCA provided
`only “consulting services” to a few collectives. (Doc. 246 at 9.) The undisputed evidence,
`however, supports CCA’s position. (Doc. 230-10; Doc. 238-1.)
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 3 of 57
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`trade shows and competitions, including the “Chalice Cup”6 festivals in California. At
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`the 2016 Chalice Cup, BBK representatives visited CCA’s Raw Garden booth and spoke
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`with CCA employees who were promoting the Raw Garden brand. One BBK
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`representative, Michael D’Aqiusto, “traded some [of BBK’s] RAW [rolling] papers for
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`two hats with the ‘Raw Garden’ name on them.” (Doc. 203 at 12.) D’Aquisto gave his
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`business card to CCA’s representatives and discussed a potential partnership through
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`which Raw Garden cannabis could be packaged using RAW cones. Another BBK
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`representative, Rodney Peters, later posted an image of a Raw Garden-branded hat
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`alongside RAW rolling papers, cannabis, and a RAW tray to an Instagram account used to
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`advertise BBK products. A screenshot of the Instagram post was later sent to BBK’s
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`general counsel, Brendan Mahoney.
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`BBK claims CCA has infringed its RAW trademarks by producing, using,
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`advertising, distributing, selling, and offering to sell its products under the Raw Garden
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`brand. BBK initiated the instant action on September 18, 2019. BBK’s Amended
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`Complaint (the operative complaint) alleges seven claims: trademark infringement, false
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`designation of origin, and anti-cybersquatting under the Lanham Act; trademark
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`infringement and unfair competition under Arizona’s common law; a petition to void
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`several trademark applications due to a lack of bona fide intent to use the relevant
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`trademark in commerce in violation of the Lanham Act; and false advertising under the
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`Lanham Act. (Doc. 60 at 40–47.) On May 4, 2021, the Court granted CCA’s motion to
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`dismiss the false advertising claim but declined to dismiss the petition to void CCA’s
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`trademark applications for a lack of bona fide intent to use. (Doc. 151.) CCA now moves
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`for summary judgment on BBK’s infringement, false designation of origin, anti-
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`cybersquatting, and unfair competition claims. (Doc. 203.)
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`In addition to contesting the merits of BBK’s claims, CCA raises a number of
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`affirmative defenses, including laches, waiver, estoppel, acquiescence, statute of
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`limitations, and unclean hands. (Doc. 169 at 24–25.) CCA also alleges two counterclaims:
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`6 Chalice Cup was a cannabis festival held annually in southern California. (Doc. 203-17
`at 8; Doc. 203-26 at 5.)
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 4 of 57
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`a petition to cancel several BBK trademark registrations for fraud on the United States
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`Patent and Trademark Office (“PTO”), and a petition to cancel the same registrations for
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`unlawful use. (Doc. 169 at 57–59.)
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`In its cross-motion for summary judgment (Doc. 293), BBK seeks summary
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`judgment on all of CCA’s affirmative defenses, each of CCA’s counterclaims, and its
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`petition to void CCA’s trademark applications for a lack of bona fide intent to use. The
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`parties have also filed numerous motions to exclude each other’s expert witnesses.
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`II.
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`LEGAL STANDARDS
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`
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`A. Daubert
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`A party offering expert testimony must establish that the testimony satisfies Rule
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`702 of the Federal Rules of Evidence. Rule 702 provides:
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`A witness who is qualified as an expert by knowledge, skill,
`experience, training, or education may testify in the form of an
`opinion or otherwise if:
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`(a) the expert’s scientific, technical, or other specialized
`knowledge will help the trier of fact to understand the evidence
`or to determine a fact in issue;
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`(b) the testimony is based on sufficient facts or data;
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`(c) the testimony is the product of reliable principles and
`methods; and
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`(d) the expert has reliably applied the principles and methods
`to the facts of the case.
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`Fed. R. Evid. 702.
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`
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`As gatekeepers, trial judges make a preliminary assessment as to whether expert
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`testimony is admissible. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 597
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`(1993). Specifically, “the trial judge must ensure that any and all scientific testimony or
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`evidence admitted is not only relevant, but reliable.” Id. at 589. To meet the requirements
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`of Rule 702, an expert must be qualified, the expert’s opinion must be reliable in that it
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`is based on sufficient facts or data and is the product of reliable principles and methods,
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`and the expert’s testimony must fit the case such that the expert’s opinion is relevant. Id.
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`at 589–95.
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`The Rule 702 inquiry is “flexible.” Id. at 594. The focus “must be solely on
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`principles and methodology, not on the conclusions that they generate.” Id. at 595.
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`Because the requirements of Rule 702 are conditions for determining whether expert
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`testimony is admissible, a party offering expert testimony must show by a preponderance
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`of the evidence that the expert’s testimony satisfies Rule 702. Fed. R. Evid. 104(a); see
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`also Lust v. Merrell Dow Pharms. Inc., 89 F.3d 594, 598 (9th Cir. 1996).
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`B.
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`Summary Judgment
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`Summary judgment is appropriate when the evidence, viewed in the light most
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`favorable to the non-moving party, demonstrates “that there is no genuine dispute as to
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`any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
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`P. 56(a). A genuine issue of material fact exists when “the evidence is such that a
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`reasonable jury could return a verdict for the nonmoving party,” and material facts are
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`those “that might affect the outcome of the suit under the governing law.” Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he
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`evidence of the non-movant is to be believed, and all justifiable inferences are to be
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`drawn in his favor.” Id. at 255 (citations omitted); see also Jesinger v. Nev. Fed. Credit
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`Union, 24 F.3d 1127, 1131 (9th Cir. 1994) (holding that the court determines whether
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`there is a genuine issue for trial but does not weigh the evidence or determine the truth
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`of matters asserted).
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`
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`Where, as here, the “parties submit cross-motions for summary judgment, each
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`motion must be considered on its own merits.” Fair Hous. Council of Riverside Cnty. v.
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`Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citations and internal quotations
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`omitted). The summary judgment standard operates differently depending on whether
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`the moving or non-moving party has the burden of proof. See Celotex Corp. v. Catrett,
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`477 U.S. 317, 322–23 (1986). When the movant bears the burden of proof on a claim at
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`trial, the movant “must establish beyond controversy every essential element” of the
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`claim based on the undisputed material facts to be entitled to summary judgment. S. Cal.
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 6 of 57
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`Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). If the movant fails to
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`make this showing, summary judgment is inappropriate, even if the non-moving party has
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`not introduced contradictory evidence in response. When, on the other hand, the non-
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`movant bears the burden of proof on a claim at trial, the movant may prevail either by
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`citing evidence negating an essential element of the non-movant’s claim or by showing
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`that the non-movant’s proffered evidence is insufficient to establish an essential element
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`of the non-movant’s claim. See Celotex, 477 U.S. at 322–23; 10A Charles Alan Wright
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`& Arthur R. Miller, Federal Practice and Procedure § 2727.1 (4th ed. 2022).
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`III. DISCUSSION
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`A.
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`Daubert Motions
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`Both parties have moved to exclude one another’s experts. Because the experts’
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`opinions are material to the Court’s evaluation of the parties’ motions for summary
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`judgment, the Court will first address the parties’ motions to exclude.
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`BBK moves to exclude or limit the opinions of five CCA experts: Dr. David
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`Blackburn, Dr. Tülim Erdem, Dr. Elisabeth Honka, Khurshid Kohja, and Thomas
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`Tiderington. CCA opposes each motion. CCA, in turn, moves to exclude or limit
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`the opinions of six BBK experts: Lance Ott, Ian Kobe, Dr. On Amir, Francis Burns, Dr.
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`Jeffrey Stec, and Louis Maiellano. Like CCA, BBK opposes each motion. Because the
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`Court will grant CCA summary judgment on BBK’s trademark infringement claims, the
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`Court will not reach the parties’ arguments regarding BBK’s disgorgement claim.
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`Accordingly, the Court will not address the motions to exclude damages experts
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`Francis Burns (Doc. 311) and Dr. David Blackburn (Doc. 298).
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`1. Dr. Jeffrey Stec
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`BBK retained Dr. Jeffrey Stec, a consumer survey expert, to opine regarding the
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`likelihood of consumer confusion. CCA moves to exclude both Dr. Stec’s testimony and
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`the survey evidence upon which he relies. (Doc. 314.) CCA gives three reasons: First,
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`Dr. Stec improperly employed the Squirt survey methodology, see SquirtCo. v. Seven-Up
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`Co., 628 F.2d 1086, 1089 (8th Cir. 1980), rather than the Eveready methodology, see
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`Union Carbide Corp. v. Ever-Ready Inc., 531 F.2d 366, 387 (7th Cir. 1976).7 Second, he
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`surveyed the wrong population because he did not limit survey respondents to only
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`cannabis concentrate consumers. And finally, his survey is “unreliable” evidence of
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`confusion because it returned a low net confusion rate.
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`In the Ninth Circuit, survey evidence should be admitted “as long as [it is]
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`conducted according to accepted principles and [is] relevant.” Fortune Dynamic, Inc. v.
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`Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1036 (9th Cir. 2010)
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`(alteration in original) (quoting Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir.
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`1997)). “Admissibility of a survey is a threshold question that must be resolved by a
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`judge.” M2 Software, Inc., v. Madacy Ent., 421 F.3d 1073, 1087 (9th Cir. 2005).
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`“Once the survey is admitted, however, follow-on issues of methodology, survey design,
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`reliability, the experience and reputation of the expert, critique of conclusions, and the
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`like go to the weight of the survey rather than its admissibility.” Clicks Billiards, Inc. v.
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`Sixshooters, Inc., 251 F.3d 1252, 1263 (9th Cir. 2001).
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`CCA claims Dr. Stec’s testimony should be excluded because he employed the
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`Squirt survey format, rather than the Eveready format. Under the Squirt format,
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`respondents are shown both the senior and junior marks8 and then asked whether the
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`products associated with the mark come from the same or a different source. A Squirt
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`survey does not assume that respondents are familiar with the senior mark. 6 McCarthy on
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`Trademarks and Unfair Competition § 32:174.50 (5th ed.). Thus, the Squirt format is
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`appropriate principally where a case involves “marks that are weak, but are simultaneously
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`or sequentially accessible in the marketplace for comparison.” Jerre B. Swann, Likelihood
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`of Confusion Studies and the Straightened Scope of Squirt, 98 Trademark Rep. 739, 755–
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`56 (2008).
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`Under the Eveready format, on the other hand, the survey does not inform
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`7 While the title of the case from which “Eveready” derives its name is in fact “Ever-
`Ready,” courts and commentators generally omit the hyphen. See, e.g., 6 McCarthy
`§ 32:174.
`8 In the instant case, BBK’s RAW mark is the senior mark and CCA’s Raw Garden mark
`the junior mark.
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`respondents what the senior mark is, but instead assumes they know of the mark from
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`their prior experience. 6 McCarthy § 32:174. Respondents are shown only the junior,
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`allegedly infringing mark, and are then asked open-ended questions about whether they
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`associate it with another mark. See Pinnacle Advert. & Mktg. Grp., Inc. v. Pinnacle Advert.
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`& Mktg. Grp., LLC, No. 18-cv-81606, 2019 WL 7376782, at *3 (S.D. Fla. Sept. 26, 2019).
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`The Eveready format, therefore, is especially useful when the senior mark is “top of
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`mind”—readily recognized by consumers in the relevant universe. Jerre B. Swann,
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`Eveready and Squirt—Cognitively Updated, 106 Trademark Rep. 727, 733–34 (2016)
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`(“‘Top-of-mind’ refers to marks that are readily accessible in memory. . . . The Eveready
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`format is thus the gold standard for assessing confusion as to (readily recalled) top-of-
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`mind marks; but not all commercially strong marks are cognitively stored top-of-mind;
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`and the Eveready format is thus not appropriate for all strong marks.”). CCA claims Dr.
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`Stec should have used the Eveready format in this case because “there is no evidence
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`showing the Raw Garden and RAW marks exist in physical or temporal proximity in the
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`marketplace” and because “BBK’s own claims and evidence [purport to show] that its
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`RAW mark is widely recognized in the market.” (Doc. 314 at 13–14.)
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`
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`While CCA may disagree with Dr. Stec’s decision to use the Squirt format, he
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`adequately explained his decision and conducted his survey according to generally
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`accepted principles. Squirt surveys are broadly accepted by courts in the Ninth Circuit,
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`particularly where (as here9), the senior user’s and junior user’s brands overlap in the
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`marketplace. See Fortune Dynamic, 618 F.3d at 1037–38; see also Swann, Eveready and
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`Squirt—Cognitively Updated, at 742 (the Squirt methodology is “appropriate in assessing
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`the likelihood of whether brands that, in the real world, are frequently encountered in
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`physical or temporal proximity will be seen as so physically or conceptually similar or
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`related that they are deemed to go or belong together”). Thus, while CCA is right that Squirt
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`surveys generally return higher net confusion rates than Eveready surveys, see 6 McCarthy
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`9 CCA’s contention that “there is no evidence showing the [parties’] marks exist in physical
`or temporal proximity in the marketplace” is belied by the undisputed evidence that the
`parties’ goods are sold in “hundreds of the same dispensaries in California.” (Doc. 246 at
`30.)
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`§ 32:174.50, that fact alone does not render such surveys inadmissible. Rather, CCA may
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`readily illustrate the inadequacies in Dr. Stec’s survey through vigorous questioning on
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`cross examination and through its own likelihood of confusion expert.
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`CCA next argues Dr. Stec’s opinions should be excluded because he surveyed the
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`wrong universe: all users of cannabis products, rather than users of cannabis concentrate
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`products. “In a traditional case claiming ‘forward’ confusion . . . the proper universe to
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`survey is composed of the potential buyers of the junior user’s goods or services.” 6
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`McCarthy § 32:161 (emphasis added). Dr. Stec reasonably determined that all cannabis
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`consumers were potential consumers of CCA’s concentrate and vape products. And he
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`adequately explained the reasons for that determination in his report. (Doc. 314-1 at 13.)
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`Further, CCA itself appears to have made the same determination when designing some
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`of its own business surveys. (See Doc. 439 at 13; Doc. 439-1.) Thus, insofar as CCA
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`disagrees with Dr. Stec’s chosen universe, its concern goes to weight rather than
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`admissibility, and can be borne out through cross examination at trial.
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`CCA’s finally argues Dr. Stec’s survey is not “reliable” evidence of consumer
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`confusion because the survey returned only a low net confusion rate. This argument is
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`easily dismissed. “The focus [of the Rule 702 inquiry], of course, must be solely
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`on principles and methodology, not on the conclusions that they generate.” See Daubert,
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`509 U.S. at 595. The net confusion results returned by Dr. Stec’s consumer confusion
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`survey go to the survey’s weight, not its admissibility. CCA’s motion (Doc. 314) will
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`therefore be denied.
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`2. Dr. Tülim Erdem
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`CCA engaged Dr. Tülim Erdem to respond to the opinion of BBK’s consumer
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`confusion expert, Dr. Stec. BBK moves to exclude Dr. Erdem’s opinions because, in its
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`view, she played no part in designing or conducting the survey on which those opinions
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`are based. Instead, the survey “was designed by CCA’s litigation counsel and conducted
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`at counsel’s direction by CCA’s regular marketing-research firm, MFour, whose
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`employees have no training or experience in conducting trademark consumer confusion
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 10 of 57
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`surveys.” (Doc. 302 at 6.)
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`As mentioned above, survey evidence should be admitted “as long as [it is]
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`conducted according to accepted principles and [is] relevant.” Fortune Dynamic, 618
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`F.3d at 1036 (alteration in original). BBK offers several reasons why the challenged
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`survey was not “conducted according to accepted principles.” First, the survey’s creator
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`“did not qualify as an expert on designing or analyzing consumer surveys,” M2 Software,
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`421 F.3d at 1087, since the survey was designed either by litigation counsel or by MFour
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`personnel with no training or experience in designing consumer confusion surveys.
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`Second, the survey did not focus on the proper universe. And third, the survey asked
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`“leading introductory questions” and “confidence-challenging follow-up questions” that
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`were impermissibly suggestive and distorted responses.
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`To begin, the evidence does not support BBK’s assertion that the survey was
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`“actually designed and implemented” by CCA’s counsel. (Doc. 302 at 7.) Although
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`counsel identified the survey’s objectives and target population, MFour employees,
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`including Allyson Wehn, designed and administered the survey. (See Doc. 302-2 at 5, 20,
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`74.) Further, while CCA did provide MFour several of the survey questions, that alone
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`does not render the entire survey subject to exclusion. See, e.g., Quidel Corp. v. Siemens
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`Med. Sols. USA, Inc., No. 16-cv-03059, 2019 WL 5328730, at *5 n.4 (S.D. Cal. Oct. 21,
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`2019) (“[T]he fact that one portion of the survey was drafted by Plaintiff’s counsel does
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`not mean the entire survey should be excluded under Ninth Circuit precedent.”).
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`Counsel’s assistance in designing and creating a survey does not generally
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`warrant exclusion. See 6 McCarthy § 32:166 (“While some authority indicates that a
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`survey is flawed if an attorney is involved in designing the questions to be asked, this
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`cannot be a correct criticism.”). Indeed, although “it is improper for an attorney to single
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`handedly design and conduct a survey without the assistance of a professional,” the
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`attorney’s “cooperation with the survey professional in designing the survey is essential
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`to produce relevant and usable data.” Id. (emphasis added). This is only logical; survey
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`experts are not legal experts. In a case such as this, involving complex questions of
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 11 of 57
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`federal trademark law, counsel’s guidance is needed to frame survey parameters and
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`ensure relevance. In general, then, counsel’s involvement draws a survey’s admissibility
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`into question only when the survey is designed exclusively by counsel without the
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`assistance of a survey professional,10 Elliot v. Google Inc., 45 F. Supp. 3d 1156, 1167–
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`68 (D. Ariz. Sept. 11, 2014), or when counsel administers the survey directly, 6 McCarthy
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`§ 32:166 (“The only relevant limitation is that the attorneys do not conduct the survey.”).
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`Neither occurred here. Thus, CCA’s counsel’s involvement will not preclude admission of
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`either the survey or of Dr. Erdem’s related testimony.
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`BBK next claims that Dr. Erdem’s testimony and the survey are inadmissible
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`because “the conclusions in Dr. Erdem’s report do not match the conditions” of the
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`MFour survey. Whereas the survey focused only on “consumers who’ve purchased
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`Cannabis concentrate products at least 1x in the past 12 months,” and “exclude[d]
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`purchasers of vape products entirely,” Dr. Erdem’s opinions were based on “people who
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`prefer vapes and concentrates.” (Doc. 302 at 14–15.) The MFour survey was indeed
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`underinclusive. The undisputed evidence shows that CCA sells vape products, in addition
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`to concentrate products. Thus, in assessing forward confusion, vape consumers, like
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`concentrate consumers, should have been surveyed. While the survey did list “Cannabis
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`Vape Oil Product” as an option respondents could select as their “preferred way of
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`consuming Cannabis” (see Doc. 434-8 at 7–8), those who selected that option were
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`excluded from the survey results.11 (Doc. 302-1 at 6.) See 6 McCarthy § 32:161 (“In
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`a traditional case claiming ‘forward’ confusion . . . the proper universe to survey is
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`composed of the potential buyers of the junior user’s goods or services.”).
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`10 Despite BBK’s arguments to the contrary, Ms. Wehn was qualified to design and conduct
`the survey. Indeed, she testified in her deposition that she has been designing and
`administering consumer surveys for more than 20 years. (Doc. 302-2 at 78.) She easily
`satisfies the requisite standard. See Elliott v. Google, Inc., 860 F.3d 1151, 1160 (9th Cir.
`2017) (“[V]alid survey design typically requires graduate training or professional
`experience in survey research.” (emphasis added) (quoting Federal Judicial Center,
`Reference Manual on Scientific Evidence 364 (3d ed. 2011))).
`11 Although Dr. Erdem testified at deposition that the term “concentrate” often implicitly
`includes vape products (see Doc. 302-3 at 26–27), because the MFour survey listed
`“Cannabis Vape Oil Product” and “Cannabis Concentrate Product” separately (see Doc.
`302-1 at 5), such inclusivity was clearly not implied here.
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 12 of 57
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`Even having concluded the survey was underinclusive, the question remains
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`whether it should be excluded from evidence. The Court concludes that it should not.
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`Although the universe surveyed was plainly not the optimal one, it was also not so
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`“significantly skewed away from the proper group of people whose perception is at
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`issue” as to render it inadmissible. 6 McCarthy § 32:159. The survey is therefore
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`admissible and BBK’s objection affects only its weight. See Daubert, 509 U.S. at 596
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`(“Vigorous cross-examination, presentation of contrary evidence, and careful instruction
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`on the burden of proof are the traditional and appropriate means of attacking shaky but
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`admissible evidence.”).
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`Third, BBK argues that the survey and Dr. Erdem’s opinions are inadmissible
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`because the survey asked impermissibly suggestive “leading introductory questions” and
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`“confidence-challenging follow-up questions” (Doc. 302 at 18), in addition to the
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`traditional Eveready questions.12 Ms. Wehn testified at deposition that the introductory
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`questions were intended to assess the degree of care exercised by cannabis consumers.
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`(Doc. 302-2 at 7, 16–17.) BBK claims that these questions created distorting “demand
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`effects.”13 Even if true, though, BBK’s objection again goes to weight, not admissibility:
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`“‘[T]echnical inadequacies’ in a survey, ‘including the format of the questions or the
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`manner in which it was taken, bear on the weight of the evidence, not its admissibility.”
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`Fortune Dynamic, 618 F.3d at 1036 (quoting Keith v. Volpe, 858 F.2d 467, 480 (9th Cir.
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`1988)).
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`The survey’s follow-up questions are also not grounds for exclusion. These
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`questions were intended to assess consumers’ confidence and ensure that their responses
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`were more than mere guesswork. (See Doc. 434-9 at 20.) While such questions may not
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`ordinarily be included in an Eveready survey, their inclusion does not so distort the
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`12 As described above, in an Eveready survey, respondents are shown the junior user’s
`product and are asked to identify the company that (a) puts out, (b) sponsors or approves,
`or (c) has a business affiliation or connection to the product. See Ever-Ready Inc., 531 F.2d
`366.
`13 “‘Demand Effects’ in a survey are produced when respondents use cues from the survey
`procedures and questions to infer the purpose of the survey and identity the ‘correct’
`answers.” 6 McCarthy § 32:172.
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 13 of 57
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`survey’s results as to render them wholly inadmissible. Indeed, there is literature
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`suggesting that such questions enhance survey reliability. See Barton Beebe, Roy
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`Germano, Christopher Jon Sprigman & Joel Steckel, The Role of Consumer Uncertainty
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`in Trademark Law: An Experimental and Theoretical Investigation 49 (NYU Law &
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`Econ. Working Paper No. 21-13, 2021) (“[W]e believe that testing for consumer belief
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`strength will significantly improve the utility of trademark survey evidence.”). To the
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`extent BBK believes that these confidence-gauging questions introduced bias, it may
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`produce its own evidence and ask probing questions on cross-examination to that effect
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`at trial.
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` BBK finally contends that even if the survey was conducted in accordance with
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`accepted principles, CCA cannot show that it was, because neither Dr. Erdem nor Dr.
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`Honka have the requisite knowledge regarding the survey’s design or implementation.
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`Relatedly, BBK argues that because Drs. Erdem and Honka lack such knowledge, their
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`testimony cannot be adequately tested on cross examination. (Doc. 304 at 8.) The Court
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`is again unpersuaded. Both experts will be subject to cross examination and, should such
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`examination demonstrate their lack of knowledge regarding the survey on which they
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`relied in forming their opinions, the jury will have ample opportunity and reason to
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`discount those opinions. In addition, since BBK’s counsel was able to depose MFour
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`personnel, including Ms. Wehn, during discovery regarding the survey, BBK has any
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`information that may undermine the survey’s reliability at trial. Indeed, as CCA notes,
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`BBK may even play relevant portions of the deposition at trial, if necessary. (Doc. 434 at
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`16 (citing Fed. R. Civ. P. 32(a)(4)(b)).) BBK’s motion (Doc. 302) will accordingly be
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`denied.
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`3. Dr. On Amir
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`Dr. On Amir was retained by BBK to opine regarding the “degree of care likely
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`to be exercised” by consumers of CCA’s goods. See AMF, Inc. v. Sleekcraft Boats, 599
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`F.2d 341, 353 (9th Cir. 1979). Dr. Amir is a professor of marketing at the University of
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`California at San Diego. Dr. Amir seeks to opine that CCA’s consumers exercise a
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`Case 2:19-cv-05216-MTL Document 443 Filed 07/19/22 Page 14 of 57
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`low degree of care