Marketing Expert’s Survey Deemed In Danger of Prejudice For Failing To Consider Marketplace Conditions

    Marketing Expert Witness

    Court: United States District Court for the Eastern District of Missouri, Eastern Division
    Jurisdiction: Federal
    Case Name: Hain Blueprint, Inc. v. Blueprint Coffee, LLC
    Citation: 2018 U.S. Dist. LEXIS 201886


    The plaintiff, Hain, was a manufacturer, distribution, and marketer of non-alcoholic beverages. For its products, Hain used a series of marks containing the word “Blueprint”  and owned several registrations for marks, including “Blueprint,” “Blueprint Green,” “Blueprint Cleanse,” “BlueprintCleanse,” “BlueprintBar,” “BlueprintJuice,” and “BlueprintKit”.

    In 2013, the defendant, Blueprint Coffee (BPC) inaugurated its first coffee shop in St. Louis, Missouri and began to sell specialty-grade coffee beans and coffee beverages under the mark  “Blueprint Coffee”. Blueprint Coffee moved an application for registration of a trademark “Blueprint Coffee”. Upon awareness of the defendant’s application, Hain moved a Notice of Opposition to the “Blueprint Coffee” mark and immediately afterwards, the plaintiff moved the instant three-count lawsuit against the Blueprint Coffee.

    Both the plaintiff and the defendant sold their goods at Whole Foods Market grocery store locations in and around St. Louis as well as online. However, both parties opposed the specifics by which their goods were sold at Whole Foods Market and online. The defendant stated that the only goods it sold outside of its coffee shops were bagged whole-bean coffee, both at Whole Foods Market and online. The plaintiff’s trade, however, included the sale of its pre-bottled coffee- and fruit-containing beverages both online and at Whole Foods Market. The parties argued whether the plaintiff currently sold any coffee-containing beverage at Whole Foods Market.

    Hain contended that in using the “Blueprint” mark, the defendant was liable both for trademark infringement and common law unfair competition. Hain moved for partial summary judgment on liability arguing that “it was not disputed that the plaintiff had the exclusive and nationwide rights to use the mark “Blueprint” in relation to the non-alcoholic beverages” and that “there was no actual conflict of substantial facts that the defendant used the identical term in its Blueprint Coffee mark in relation to the sale of identical goods.

    The Expert

    The plaintiff retained a marketing expert witness to conduct a consumer study for the case. The expert was a marketing professor with a Ph.D. from Northwestern University. The marketing expert described that her study “was carried out to ascertain whether customers at Whole Foods Markets would accept that a commodity having the BluePrint Coffee Mark belonged with the Blueprint line of refreshments and beverages.” The scope of the survey considered just one venue and one part of the defendant’s market i.e. its bagged whole-bean coffee goods sold at Whole Foods Markets.

    The defendant moved to exclude the testimony and consumer study of the plaintiff’s marketing expert.

    Courts Analysis

    The defendant argued that the marketing expert’s study was not relevant because it was too inadequate in extent. The study was confined to “goods sold in grocery shops that feature organic, natural and healthy foods such as Natural Grocers, Whole Foods, Traders Joes, etc.” The study was too narrowly focused and, therefore, did not achieve the defendant’s main trade as a coffee shop with restricted online and retail businesses of its bagged whole-bean coffee. This restricted scope did not achieve the complete scale of the goods and services of the defendant nor its main distribution places.

    Since the plaintiff and the defendant agreed that defendant’s main trade was its coffee shop services (with limited online business for its bagged whole-bean coffee), the study was just too small to be adequately connected to the defendant’s main trade. The defendant contended that the study provided no contextual mention of how customers would perceive the word “Blueprint”.

    The defendant further contended that the study was too indicative in analyzing the plaintiff’s and defendant’s products with each other. The study questions seemed to induce readers into discovering a similarity based stringently on a similarity of name, instead of similarity of goods. Therefore, this moreover rendered the study an unreliable symbol of customer confusion.


    The court held that Daubert warned that Rule 403 of the Federal Rules of Evidence permitted the exclusion of relevant evidence “if its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” On the basis of the above flaws, the court reasoned that the study, while marginally important in the restricted grocery store setting, would do more harm than good by confusing the issues, misleading the jury, and potentially wasting time.

    The study did too little to entertain the opinions and views of those real customers of the defendant’s goods and services, and the real marketplace circumstances faced by those consumers, so as to significantly help the jury in ascertaining the likelihood of confusion.

    The court granted the defendant’s motion to exclude the marketing expert.