Marketquest Group, Inc. v. Societe Bic, S.A., 3:11-cv-00618

Marketquest Group, Inc. (plaintiff) sues BIC and related entities for trademark infringement / reverse confusion based on BIC’s use of phrases like “All in ONE” and “The Write Pen Choice.”
Marketquest and BIC are suppliers in the promotional-products industry; distributors typically intermediate sales to end consumers.
BIC retained survey expert Hal Poret to measure likelihood of confusion from the 2011 Norwood catalog cover using a Sequential Lineup Survey of end purchasers (prospective end consumers) shown Marketquest’s website then several catalogs.
Poret’s survey produced a 4.7% confusion rate; he concluded that use of “All in ONE” on the Norwood catalog is unlikely to cause confusion.
Marketquest moved to exclude Poret’s survey and testimony under Daubert, arguing (1) wrong survey universe (should have surveyed distributors, not end consumers) and (2) insufficient replication of market conditions (static screenshots, unknown website-search behavior, order of stimuli enhancing differences).
The district court denied the motion, holding the survey admissible: methodological flaws affect weight, not admissibility, unless so serious as to make reliance unreasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper survey universe	Surveyed end consumers but should have surveyed distributors (Marketquest’s actual customers) for reverse confusion	End consumers are relevant because they see Marketquest’s mark and if end users aren't confused then distributors likely aren't; end-user survey probative	Court: Universe limited to end purchasers reduces probative value but does not make survey inadmissible; weight for jury
Replication of market conditions	Survey used static screenshots, unknown whether end users search supplier sites, and showing website then catalogs exaggerated distinctions	Controlled, static stimuli provide standardized exposure; respondents were shown Marketquest uses and catalogs to connect marks	Court: Imperfections are technical; survey sufficiently replicates market conditions for admissibility; defects go to weight
Whether survey methodology is fundamentally unreliable under Daubert	Survey’s design and universe create an impermissible analytical gap rendering it irrelevant	Professionally conducted survey is generally admissible; flaws are for cross-examination and weight	Court: Survey met Rule 702/Daubert threshold; admissible; serious flaws not shown
Whether testimony should be excluded entirely	Exclude both survey results and expert testimony as inadmissible	Admit survey and testimony; jury will assess credibility/weight	Court: Denied plaintiff’s Daubert motion; expert may testify and jury assesses weight

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (gatekeeping standard for expert admissibility)
Primiano v. Cook, 598 F.3d 558 (expert testimony relevance and reliability threshold)
Southland Farms v. Stover Seed Co., 108 F.3d 1134 (survey evidence ordinarily admissible; technical defects go to weight)
Clicks Billiards, Inc. v. Sixshooters Inc., 251 F.3d 1252 (survey admissible if proper foundation and relevance; methodological critiques affect weight)
M2 Software, Inc. v. Madacy Entm’t, 421 F.3d 1073 (court may exclude surveys with serious methodological flaws)