Summary:
MMR Strategy Group was retained by Blueprint Coffee, LLC, in Hain BluePrint v. Blueprint Coffee, to rebut survey evidence submitted by Hain BluePrint arising from a trademark infringement dispute. Dr. Justin Anderson, Senior Vice President at MMR Strategy Group, testified that the plaintiff’s survey failed to provide a reliable measure of likelihood of confusion between Hain BluePrint products and Blueprint Coffee products. Will expert opinions provide a “blueprint” for a decision?
Case Facts:
Hain BluePrint (“Hain”) is a producer, manufacturer, and distributor of fruit-based non-alcoholic beverages including raw and pressed juices, kombucha, cleanses and tonics. It uses a series of trademarks and holds eight registered trademarks in the categories of fruit-containing or fruit-based beverages. Those beverages are part of the “functional beverage” market, which refers to beverages infused with vitamins and minerals purported to have health benefits. This market is sizeable and was estimated at $156 billion in 2022. The company’s original trademarks were filed starting in 2008.
In 2013, Blueprint Coffee (“BPC”) was formed and opened a retail coffee shop in Missouri. Using the mark “Blueprint Coffee,” BPC began selling whole-bean specialty coffee in addition to specialty drinks including cocoa, tea, and sparkling water. In addition, BPC expanded its offerings to include fruit-based beverages and advertised on Facebook using the “Blueprint Coffee” mark.
Hain and BPC both sell products online and in specialty food stores including Whole Foods Market. In 2014, BPC applied for a trademark registration for “Blueprint Coffee”; Hain filed an opposition to the application in 2015. In 2016, Hain filed suit for trademark infringement and unfair competition in the Eastern District of Missouri. Hain argued that it has exclusive use of the word “BluePrint” in the class of non-alcoholic beverages. BPC contended that Hain did not have rights to the term “Blueprint” in connection with coffee and coffee shops, since Hain operates in the functional beverage market.
Design of Plaintiff’s Survey
Hain retained a survey expert to measure any likelihood of consumer confusion between BPC’s use of BLUEPRINT and Hain. Hain’s expertdesigned and conducted a variation of a likelihood of confusion survey using the Squirt format. The survey was designed to measure whether Whole Foods Market consumers, or other consumers at health food stores, would believe that Blueprint Coffee was a product of Hain BluePrint.
The survey was conducted online and included 400 respondents. Respondents were informed that the research focused on products sold in grocery stores featuring natural, organic and healthy food, such as Whole Foods, Trader Joe’s, Sprouts Farmers Markets, and similar locations. Respondents were qualified for the survey according to how often they shopped at natural food stores.
Qualified respondents were asked a series of questions about their shopping habits and then asked whether they had heard of the Hain BluePrint products. Following this question, they were shown an image of the Blueprint Coffee packaging and asked whether they thought Blueprint Coffee was a Hain BluePrint product or related to such a product, using a closed-ended question offering yes, no, or maybe responses. Those who responded “maybe” were provided a sliding scale allowing them to select the percentage of likelihood that the products were related to Hain BluePrint.
The survey results showed that 61.25% of respondents believed that Hain BluePrint and Blueprint Coffee were related, and that 12.25% were aware of Hain BluePrint prior to taking the survey. The plaintiff’s expert testified that the survey showed a significant likelihood of confusion.
MMR Strategy Group Rebuttal
Dr. Justin Anderson was retained by defendant Blueprint Coffee to provide a rebuttal to the survey from Hain. In his rebuttal, he testified that he believed the plaintiff’s survey to be flawed and unreliable as a measure of consumer confusion. This was based on several factors, each of which he said might alone make the survey unreliable, and in combination created severe flaws in the methodology.
First, Dr. Anderson testified that the survey universe was incorrect and therefore did not measure the consumer population that would potentially be confused. For the survey to properly measure confusion in this case, he said, it should isolate potential purchasers of Blueprint Coffee products–purchasers of coffee–rather than patrons of natural food stores. Additionally, both brands sell online, but the online segment of consumers was left out entirely.
Second, Dr. Anderson said, the survey failed to replicate the conditions of the marketplace where consumers would be confused. The survey showed the Blueprint Coffee logo, without context of where the logo and product would be found in the store. Blueprint Coffee presented evidence that it sells only whole bean coffee to Whole Foods Market and other natural stores, and Hain BluePrint’s functional beverages may be found in a separate aisle, depending on the market. Dr. Anderson testified that this is another area where an online replication and analysis would be helpful for determining market conditions, since both companies sell their products online.
Lastly, Dr. Anderson testified that there were methodological issues with the Hain survey: It did not include a control to filter noise and bias, and it did not conform to either established format for measuring likelihood of confusion, the Eveready or the Squirt formats. If the survey does not conform to the proper methodological practices, he said, its data may not be reliable. In addition, Dr. Anderson argued that the questions presented and format chosen resulted in a survey that was both leading and vague. Respondents were not offered an “I don’t know” option, and the description of Hain BluePrint was not representative of its market as a functional beverage. Rather, the survey described Hain BluePrint’s products as non-alcoholic beverages using plant ingredients, but Dr. Anderson argued that clarification was necessary because the coffee market differs from the functional beverages market.
In addition, during deposition testimony for the plaintiff’s expert, that expert could not testify about basics of the survey, including what information was communicated to respondents during the initial email invitation or how many respondents were disqualified from screening.
Court Order
The court ordered the exclusion of Hain’s expert report. It cited the same criticisms that Dr. Anderson noted. The court noted that the survey universe was underinclusive because it was limited to consumers who purchase whole-bean coffee online and did not include consumers who purchase coffee in person at a coffee shop, which would accurately reflect the market for Blueprint Coffee (the junior user). It also agreed that the survey failed to accurately represent the conditions in which a consumer would see the word “BLUEPRINT” in a store setting, and that the questions presented to the respondents were leading. In particular, the court noted that the survey’s description of Hain BluePrint as a company that “produces non-alcoholic beverages using plant-based ingredients,” which preceded questions about whether BLUEPRINT COFFEE is from the same company, was leading.
The court wrote:
“The above-described flaws lead this Court to conclude that the survey—while marginally relevant in the limited grocery store setting—would do more harm than good by confusing the issues, misleading the jury, and potentially wasting time. The survey does too little to capture the perceptions and opinions of those actual buyers of BPC’s goods and services, and the actual marketplace conditions faced by those buyers, so as to meaningfully assist the jury in determining likelihood of confusion.” Memorandum and Order in Hain Blueprint, Inc. v. Blueprint Coffee, No. 4:16-cv-1758, at 8-9 (E.D. Mo. Nov. 29, 2018).