Deere & Company v. Fimco Inc.

260 F.Supp.3d 830 (2017)

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Nature of the Case

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Facts

P sued D alleging that D is using P's green and yellow color scheme on agricultural equipment in violation of federal trademark and common law. D counterclaimed against P, seeking a declaration of non-infringing use. P filed a motion in limine seeking to preclude D from offering into evidence portions of the notes of P's expert, William Shanks, 1) as evidence of 'what the salespeople Mr. Shanks interviewed said that their customers said or did not say,' or 2) 'as evidence of those customers' state of mind.' P hired Shanks to conduct a survey investigation and write a report on his findings. Shanks spoke 20 salespeople at different dealership locations, and with 18 of those 20 salespeople, I said something very close to the following: 'I always thought [or assumed] that yellow/green farm equipment was made by . . . .' or 'I always thought [or assumed] that the yellow/green coloring looked like . . . .' I would not finish the sentence but would pause, to see if the sales personnel would finish the sentence. The salesperson responded to my partial sentence and pause by stating promptly either 'John Deere' or 'Deere.' Based on this investigation, Shanks opined 'that salespeople at dealerships that sell D's agricultural equipment perceive the green and yellow colors on agricultural equipment as associated with Deere, or at a minimum, recognize or believe that people generally associate such colors with Deere.' Shanks also took notes on but did not include in his report, that several salespeople explained that consumers of agricultural products do not confuse P and D products. P argues that Shanks' notes of what salespeople told him regarding what their customers said or did not say is classic hearsay within hearsay, which must be excluded.