SAN FRANCISCO (LN) — U.S. District Judge Eumi K. Lee on Monday denied motions to exclude expert testimony on functionality and secondary meaning in BuzzBallz’s trade dress infringement suit against MPL Brands, allowing key evidence to proceed.
The order resolves evidentiary disputes that had threatened to sideline the core of the case: whether the distinctive packaging of the pre-mixed cocktail brand is protectable or merely functional.
MPL Brands, the defendant, sought to exclude the functionality opinions of BuzzBallz experts Arthur Shapiro and Glenn May, arguing the company failed to disclose their non-functionality theories during fact discovery.
BuzzBallz had responded to an interrogatory by identifying its contention that the trade dress is protectable and referring the defense to more than 20 documents, while noting it would submit further evidence when expert reports were due.
The court found the response adequate under Federal Rule of Civil Procedure 33(d) and noted that MPL Brands had deposed both experts after they disclosed their opinions.
MPL Brands also argued that May’s non-functionality opinions should be excluded because they appeared in a reply report. The court rejected this, finding May’s analysis fell squarely within the scope of proper rebuttal to MPL Brands’ expert, Charles L. Mauro.
May directly tied his analysis to Mauro’s report, responding to specific points about the container’s shape and its impact on distribution and stacking logistics.
BuzzBallz moved to exclude Mauro’s functionality and genericness opinions, contending he applied the wrong legal standard by analyzing individual features rather than the trade dress as a whole.
The court disagreed, noting that while the proper inquiry looks dress as a whole, an expert may examine individual features to determine if the overall appearance is merely an assemblage of functional parts.
Mauro expressly opined that the trade dress taken as a whole is functional and provided a detailed analysis of various features, which the court found sufficient to survive a Daubert challenge.
The court also denied MPL Brands’ motion to exclude BuzzBallz’s secondary meaning survey conducted by expert David Franklyn.
MPL Brands argued the survey was flawed because it used an improper screening question, an improper test image, and failed to account for BuzzBallz’s patent coverage.
The court found these challenges related to the weight of the evidence, not its admissibility, citing Ninth Circuit precedent that technical inadequacies in survey design do not warrant exclusion.
Franklyn’s screening question asked respondents if they had ever seen a pre-mixed alcohol cocktail that looked like the test image, excluding only those who answered no. The court found this did not improperly limit the universe to existing buyers.
MPL Brands also argued Franklyn should have accounted for BuzzBallz’s patents, but the court noted the patents had not expired, distinguishing the case from Seventh Circuit precedent on expired patents.
The ruling leaves the substantive trade dress claims intact for resolution on summary judgment.