Trademark-related litigation is a common area for disputes on the need for expert opinions.
Plasti Dip™ is suing Rust-Oleum in U.S. District Court for the District of Minnesota (Tunheim, J.) for Rust-Oleum’s competing product, FlexiDip™. Both are rubberized coatings that can either be peeled off or left on, both sold at Home Depot, one right next to the other, apparently.
If this case goes to trial, does the jury need an expert to point out that both products use the same-sounding names?
Does the jury need to hear an expert to weigh in on whether having the two products next to each other on the shelves might lead to consumer confusion?
Does the jury need to hear an expert weigh in on Rust-Oleum’s intent when it chose the name FlexiDip for its competing product?
Does the jury need to hear an expert weigh in on Rust-Oleum’s marketing strategy of paying bloggers “to create content based on the creation of projects using the FlexiDip brand that would be viewed by other consumers” so that “the universe of potentially confused and misled consumers would then . . . also grow” and “even more consumers” may become “aware of the FlexiDip name without understanding that FlexiDip is not associated with Plasti Dip”?
Does the jury need to hear an expert weigh in on his personal knowledge of “examples of customer confusion”?
Finally, does the jury need to hear an expert offer an opinion on how much money it would cost Plasti Dip to mount an ad campaign “to address consumer confusion”?
We can read Judge Rau’s decision and decide whether we agree or disagree with the Court’s decisions on each question — probably a good idea if you have interest in trademark litigation.
But is there really any question in anyone’s mind that Rust-Oleum branded FlexiDip so that it would be associated with Plasti Dip and shift consumers from Plasti Dip to FlexiDip?
Were all the other names in the universe for a rubberized coating that can either be peeled off or left on already taken?