Judge Andrews recently resolved pre-trial motions in this trademark infringement dispute between two cruise lines. In a memorandum opinion filled with nautical analogies and Gilligan’s Island references, Judge Andrews addressed numerous Daubert and summary judgment motions.
In addressing Daubert challenges, Judge Andrews generally allowed much of the proffered testimony. His Honor excluded, however, certain portions of testimony, including one of the defendant’s experts, who opined that there was a likelihood of confusion between plaintiff’s and defendant’s marks. The expert, however, did not conduct a survey to measure consumer confusion and Judge Andrews found that the expert’s report was “nothing more than a recitation of facts paired with bare assertions.” The expert was permitted, however, to testify regarding the plaintiff’s use of the defendant’s marks a “paid search keywords” because his opinion included explanation of how consumers search for products and citations to research that provided context. American Cruise Lines, Inc. v. HMS American Queen Steamboat Co., et al., C.A. No. 13-324-RGA, Memo Op. at 8-11 (D. Del. Aug. 14, 2017). Judge Andrews also allowed an expert who offered “testimony on the policies and procedures of the USPTO [which] is of the type courts generally admit,” finding that the testimony “is admissible to the extent it is relevant, if at all, and to the extent it focuses on the policies and practices of the USPTO [but it] is excluded to the extent is explains the law.” Id. at 12-13.
Additionally, Judge Andrews granted partial summary judgment that the defendant’s failure to turn over a website domain name breached a prior settlement agreement between the parties governing the use of the Great American Steamboat Company mark. Id. at 25-26. On the same basis, the Court also declined to issue summary judgment that the defendant did not commit cybersquatting by registering the domain name. Id. at 26-31. Judge Andrews also granted summary judgment of no fraudulent procurement and no abandonment. Id. at 31-36.