Expert Article Library
Experts in a Preliminary Injunctive Action
Case Name: Borinquen Biscuit Corp. v. M.V. Trading Corp.
Date: April 4, 2006
Type of expert: advertising and brand recognition (plaintiff); market research (defendant)
Case Synopsis: Borinquen used the RICA trademark for selling cookies, crackers, and biscuits. M.V. Trading Corp. (M.V.) later sold a cracker using the name Nestle Ricas. The district court found a likelihood of confusion between the two marks and issued a preliminary injunction, restricting M.V. Trading Corp. from using the name of Ricas in advertising, distributing, or selling cookies or crackers in
Role of the expert: Both sides retained an expert to testify about the likely confusion. Borinquens witness was an expert in advertising and brand recognition who polled others in the field, concluding that confusion between the trade names was likely. M.V.s witness was an expert in market research who conducted a survey of 100 consumers in metropolitan areas and concluded that consumers could distinguish the difference between the packaging of the two products.
Expert analysis: For a preliminary injunction actual confusion is not required, only the likelihood of confusion. While Survey evidence may be helpful, it is not required. The district court found the survey of M.V.s expert to have little evidentiary value. The survey was designed to see if potential customers could spot differences in the packaging and not to identify whether M.V.s use of the Nestle Ricas mark would cause a likelihood of confusion. The small sample size and large margin of error introduced doubt as to its statistical value. The restriction upon the M.V. Trading Corp. was affirmed.
Summary prepared by J. Price, Student,