Through two Florida business entities, Superior Consulting Services, Inc. markets a blood-testing service to consumers that includes the creation of a “Healthprint” profile. Superior trademarked the term “Healthprint” to identify a profile that is “customized to a client’s unique biochemistry.” Superior markets the profile as assisting in the early detection of disease. Superior also provides nutritional advice to consumers who purchase a profile.

Shaklee Corporation applied for a trademark for “Healthprint” to identify a free, online survey that results in a recommendation for Shaklee’s nutrition supplements and related products. The recommendation purports to be tailored to a customer’s health goals, needs, and budget.

Superior sued Shaklee in federal court for trademark infringement and for violating a Florida law that prohibits deceptive trade practices. Both parties wanted to use expert witnesses at trial, and each party filed a Daubert motion to exclude the other’s expert.

Survey Evidence

Both experts offered opinions as to whether consumers are likely to confuse Shaklee’s use of “Healthprint” with Superior’s use of “Healthprint.” Both experts relied on survey evidence. The court’s Daubert analysis therefore focused on the methodologies the experts used to arrive at their diametrically different results.

Shaklee’s expert, Hal Poret, showed survey participants the Shaklee website displaying its “Healthprint” mark and the Superior website displaying its “Healthprint” mark. The survey then asked questions that were designed to determine whether the consumers were confused about whether the marks related to the same or different companies. Poret also used a control group that was shown the term “Healthstamp” instead of “Healthprint” as a safeguard against false positives.

Superior’s expert, Kirk Martenson, showed the word “Healthprint” to consumers in a plain font and described the services offered by Superior. He then asked questions designed to determine whether participants perceived the Healthprint name or services as relating to one or two companies. Martenson used no control group.

Both surveys purported to be versions of the Squirt test, which courts generally accept as a means of proving that similar trademarks are or are not confusing to consumers. The Squirt test typically places marks as they appear on products side by side and asks questions to determine whether their similar marks cause consumers to become confused about the source of each product.

Martenson’s survey found that the two uses of “Healthprint” were very likely to cause consumer confusion. Poret’s survey found little likelihood of confusion.

Martenson’s Flawed Methodology

The court faulted Martenson for designing a survey that failed to display the competing “Healthprint” terms to consumers in the context in which they were used. The court concluded that Martenson’s methodology was unreliable because it did not meet the basic standards of a Squirt survey: displaying two marks as they are actually used in the marketplace side by side to test whether they confuse consumers.

By asking questions about the term “Healthprint” without providing the context in which Superior and Shaklee used the term, the survey divorced the test from the real world. For example, customers were asked whether they thought the term “Healthprint” came from one company, two companies, or no company at all. The relevant question is not whether consumers are able to guess at the origin of a mark but whether they are confused, when they see two marks, about whether both marks are associated with the same product or service.

In addition, while Martenson found that consumers were confused as to the origin of the generic term “Healthprint,” the absence of a control group made it impossible to determine the cause of their confusion. Martenson contended that he was testing for the presence, not the cause, of confusion, but it is the cause of confusion that is relevant to a trademark infringement claim. If consumers are confused for reasons that have nothing to do with an allegedly infringing mark, their confusion is immaterial.

Finally, when Martenson’s survey described the service with which “Healthprint” is associated, it described only Superior’s service. It did not describe Shaklee’s. The court noted that a survey respondent “can only compare and contrast two services if they are given two services to compare and contrast.” If participants concluded that the term was associated with one service rather than two (which Martenson interpreted as a confusing association of the mark with a single service rather than two distinct services), the court deemed that conclusion to be compelled by survey questions that described only one service.

The court decided that Martenson’s methodology was “fatally flawed.” It therefore granted the Daubert motion and excluded Martenson’s testimony at trial.

Poret’s Reasonable Methodology

Superior complained that Poret only surveyed consumers who would consider using blood-test services to analyze nutritional needs. The court rejected the argument that Poret should also have surveyed consumers who might want a nutritional analysis without taking a blood test. While Superior occasionally offers nutritional advice without a blood test, it does not actively market those services using the “Healthprint” mark, so it was reasonable for Poret to exclude those consumers from his survey.

Superior also complained that Poret surveyed consumers who are at least 21 years old, while most of Superior’s customers are over the age of 50. Since Superior markets its services to all adults, however, Poret’s methodology was reasonable.

Superior complained that Poret showed survey participants a brochure that reproduced its website pages rather than showing them the actual website. That methodology was reasonable because it provided participants with the website content while assuring that each participant saw the same materials.

Finally, Superior complained that Poret showed participants the nutrition-related questions that Shaklee’s website asks but did not show them the questions that Superior’s website asks. Superior’s questions, unlike Shaklee’s, are included in the company’s order form. Showing the order form to participants would have underscored the fact that Superior’s services are much costlier than Shaklee’s and would have decreased the likelihood of finding consumer confusion. The decision not to show Superior’s order form to participants did not prejudice Superior and did not undermine the reliability of Poret’s methodology.

Having rejected all Superior’s challenges, the court denied its Daubert motion. The decision highlights the importance of using reliable survey methods when basing a patent infringement lawsuit on an expert’s opinion about the likelihood of consumer confusion.