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Superior Consulting Services, Inc. v. Shaklee Corp.

United States District Court, M.D. Florida, Orlando Division

May 4, 2018

SUPERIOR CONSULTING SERVICES, INC., Plaintiff,
v.
SHAKLEE CORPORATION and SHAKLEE U.S., LLC, Defendants.

          ORDER

          GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE

         This Matter comes before the Court after evidentiary hearings on the Plaintiff's Daubert Motion to Exclude Hal Poret (Doc. No. 172), the Defendant's Daubert Motion to Exclude Kirk Martensen (Doc. 173), and the accompanying responses from Plaintiff and Defendant.

         I. Factual and Procedural Background

         Superior owns two Florida fictitious business entities called “Your Future Health” and “YFH” (collectively “Superior”). Doc. 20 ¶ 5. Eleanor Cullen owns and operates Superior. Superior's “primary objective is the early detection of disease, through performing certain laboratory tests, including blood tests, for consumers.” Id. ¶ 7. Superior accomplishes its objective by creating a profile “customized to a client's unique biochemistry, ” called a “Healthprint.” Id. ¶ 11. Superior has registered the mark “Healthprint” twice with the United States Patent and Trademark Office (“USPTO”). Registration number 2646571 was obtained on November 5, 2002, and registration number 2928465 was obtained on March 1, 2005. Doc. 20 ¶¶ 14, 16. The USPTO did not require proof of a secondary meaning for either mark. Id. ¶ 18. On November 8, 2008, and February 5, 2011, Superior filed declarations of incontestability for the marks.

         On June 8, 2016, Shaklee, a corporation that manufactures and distributes nutrition supplements, beauty products, and household-cleaning products, filed a trademark application with the USPTO claiming a similar “Healthprint” mark. Shaklee's Healthprint refers to a free, online survey that consists of twenty-two questions about a client's personal characteristics, habits, and goals. Doc. 43-8 ¶ 13. Once the client answers all of the questions, he or she is presented with “a customized set of Shaklee products that fits [his or her] health goals, needs and budget.” Doc. 43- 7, Ex. 1 at 1.

         On December 14, 2017, Superior filed its Second Amended Complaint alleging trademark infringement and violations of the Florida Deceptive and Unfair Trade Practices Act. Doc. 159. On January 2, 2018, Shaklee filed its Answer, Affirmative Defenses, and Counterclaim. Doc. 166. On January 12, 2018, Superior filed the Motion to Exclude Hal Poret under Daubert (Doc. 172), and Shaklee filed the Motion to Exclude Kirk Martensen (Doc. 173) that same day. On February 2, 2018, Shaklee filed its Response (Doc. 231), and Superior filed its Response (Doc. 243). The Court held an evidentiary hearing on the Motion to Exclude Kirk Martensen on April 18, 2018. Doc. 282. On April 19, 2018, the Court held an evidentiary hearing on the Motion to Exclude Hal Poret. Doc. 286.

         II. Legal Standards

         Federal Rule of Evidence 702 governs the admission of expert witness testimony. It provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The proponent of the opinion testimony has the burden of establishing each precondition to admissibility by a preponderance of the evidence. Rink v. Cheminova, ...


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