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The Litigation Consulting Report

Trademark Litigation Graphics: Making Your Best Visual Case

Posted by Ken Lopez on Tue, Dec 13, 2011 @ 09:30 AM

trademark litigation graphicsTrademark cases are one type of case that lends itself well to the use of graphics. That may seem obvious since in most such cases, the object under dispute is a trademark – something that is itself often an item of graphic design, or at the very least a word or phrase that is easy to visualize. So one would expect that courtroom visuals would help jurors a great deal in trademark cases.

This analysis is true to some extent, in that the litigation team will wish to introduce the trademarks into evidence so that the jury can look at them and often see some obvious similarities or differences from other marks.

However, that is not usually where the analysis ends. Trademark law can be surprisingly complex and doesn’t always follow common-sense rules. Trademark trials can turn on esoteric concepts like reverse confusion, a mark that is found to be “deceptively misdescriptive,” and similar ideas.

David C. Hilliard, a name partner at Pattishall McAuliffe, Newbury, Hilliard & Geraldson, a top Chicago-based intellectual property law firm, has written that for a trial in which BASF was defending its right to use the trademark “Galaxy” for its herbicide [link is PDF], he had planned to use an effective courtroom graphic. He wrote, “For the BASF trial, we had prepared a display board that showed there were 220 Galaxy companies in existence in the midwestern United States. It was strong support for our argument that one more wouldn't infringe plaintiff's rights any more than the other 220 did.” As it happened, the graphic was not introduced into evidence, but Hilliard would certainly have introduced it under other circumstances.

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In the same article, Hilliard noted that in a case involving infringement of a potato chip packaging trademark, “In Frito Lay v. Bachman, we used a visual display which featured admissions during discovery by Bachman's president of intentional trademark infringement.

Q: Were you concerned that [your] package would be confused by the public with the more popular RUFFLES package?

A: Some would confuse it with one that looks like it, yes.”


Similarly, at A2L Consulting, we used the graphic below to show that under any circumstance, the existence of a cheap knock-off brand would not cause post-sale confusion and would thus not have a significant market effect on a high-end company.




In the graphic below, we illustrated the principle that the customers of dining establishments, bars, and hotels overlap and that the infringement of a trademark for one of those types of businesses could lead to unfair competition with a trademark for another of these types of businesses, thus causing consumer confusion in the marketplace.

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Demonstrative Evidence, Trademark Litigation

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

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Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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