GOLO, LLC v. Goli Nutrition, Inc.
1:20-cv-00667
| D. Del. | Aug 3, 2023Background
- Parties: GOLO, LLC sued Goli Nutrition Inc. and related defendants for trademark infringement and false advertising; counterclaims and multiple Daubert/summary-judgment motions followed.
- The court considered four summary-judgment and multiple Daubert motions and held a multi-hour oral argument before issuing rulings and a tentative order limiting references to FDA/FDCA, NAD, the California Task Force, and the preliminary injunction.
- Major expert challenges included Dr. Jerry Wind (marketing), Timothy Calkins (corrective-advertising damages), survey experts (Isaacson, Poret, Butler), digital-marketing expert Sameer Somal, and scientific experts (Contoreggi, Cheskin, O’Keefe).
- Key evidentiary limits: Dr. Wind may not opine on ultimate likelihood of confusion, his convergent-validity methodology and intent analogies (e.g., "identity theft") are excluded; Mr. Calkins’ corrective-advertising opinions are excluded as speculative and unfounded; certain sections of Mitchell’s and Isaacson’s reports outside the complaint scope were excluded but weight of some survey evidence allowed.
- On summary judgment, Goli’s motion on GOLO’s false-advertising claims was denied (disputed material facts remain); partial rulings limited GOLO’s recovery on false-advertising damages (no lost-profits claim pled; corrective-advertising testimony excluded); Goli’s motion on a counterclaim and GOLO’s motion re: FDCA preemption were denied.
Issues
| Issue | GOLO's Argument | Goli's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Jerry Wind (marketing expert) | Wind provides helpful marketing frameworks and harm analysis supporting likelihood of confusion | Wind opines on ultimate legal issue, uses contested methodologies (convergent validity), and comments on intent | Court: Allowed Wind on subsidiary factual marketing matters and harms, excluded any opinion on ultimate likelihood of confusion, excluded convergent-validity methodology and intent analogies |
| Corrective-advertising damages (Timothy Calkins) | Calkins quantifies corrective-impression needs and campaign cost to remedy harm | Goli argues Calkins’ assumptions (1:1 corrective impression; 100% misimpression rate) are unsupported and speculative | Court: Excluded Calkins’ corrective-advertising opinions as speculative, lacking foundational literature or campaign specifics |
| Survey evidence and rebuttals (Isaacson, Poret, Butler) | GOLO defends surveys as probative on likelihood of confusion; Butler’s rebuttal timely | Goli attacks methodology, sample universe, and timeliness | Court: Denied Daubert exclusion for Isaacson and Poret (methodology/weight for cross-exam); Butler rebuttal allowed; disputes go to weight, not admissibility |
| Use of FDA/FDCA standards and related testimony | GOLO argues some expert opinions legitimately reference FDA standards/studies | Goli seeks to avoid FDCA reliance; court warned about confusing jury with regulatory standards | Court: Excluded any testimony relying on FDA/FDCA standards; experts may discuss studies absent FDA regulatory framing; parties to meet about fact-witness testimony on FDA compliance |
| Summary judgment on GOLO’s false-advertising claims | GOLO contends Goli’s challenged claims are literally false and caused GOLO harm | Goli argues no literal falsity or causal injury as a matter of law | Court: Denied summary judgment — genuine disputes exist on falsity, tendency to mislead, and injury; but GOLO cannot recover lost-profits on false-advertising claims (not pled) and corrective-advertising damages evidence excluded |
| Damages and injunctive relief (including counterclaim I) | GOLO seeks corrective-advertising damages and lost profits; also seeks injunctive remedies | Goli contests sufficiency of pleaded damages and seeks injunctions against GOLO | Court: Mixed rulings — corrective-advertising damages expert excluded; GOLO may present other harm evidence (brand control, distinctiveness, tarnishment, lost sales) per Wind’s permitted opinions; Goli’s motion on counterclaim I denied (disputes on literal falsity and meaning remain) |
Key Cases Cited
- International Market Brands v. Martin Intern. Corp., 882 F. Supp. 2d 809 (W.D. Pa. 2012) (expert may not state ultimate legal conclusion on likelihood of confusion but may testify on factual factors)
- A & H Sportswear, Inc. v. Victoria's Secret Stores, Inc., 166 F.3d 197 (3d Cir. 1999) (discusses remedies under Lanham Act and corrective measures such as disclaimers)
- Zazu Designs v. L'Oreal, S.A., 979 F.2d 499 (7th Cir. 1992) (purpose of corrective advertising is to repair damage to a mark)
- Merck Eprova AG v. Gnosis Sp.A., 760 F.3d 247 (2d Cir. 2014) (recognizing corrective-advertising injunctions under Lanham Act)
- PODS Enterprises, LLC v. U-Haul Int'l, Inc., 126 F. Supp. 3d 1263 (M.D. Fla. 2015) (expert relied on literature to support a multi-impression corrective-advertising assumption)
- Callaway Golf Co. v. Slazenger, 384 F. Supp. 2d 735 (D. Del. 2005) (discussion of corrective-advertising damages often tied to pre-trial expenditures)
- Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F. Supp. 1219 (D. Colo. 1976) (corrective advertising awarded where defendant’s conduct was wanton and damages established)