Full opinion text
OPINION & ORDER SHIRA A. SCHEINDLIN, District Judge. I. INTRODUCTION District courts are tasked with the “special obligation” of serving as the “gatekeepers” of expert evidence, and must therefore decide which experts may testify and present evidence before the jury. Recognizing that a purported expert’s opinion often carries special weight with the jury even when unwarranted, the Supreme Court has directed district courts .to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Courts are given “broad latitude” in deciding “how to determine reliability” and in making the “ultimate reliability determination” In doing so,, however, courts are reminded that the Federal Rules of Evidence favor the admissibility of expert testimony, and their “role as gatekeeper is not intended to serve as a replacement for the adversary system.” Indeed, “[w]here the expert’s conclusion is drawn from a reliable methodology ... the correctness of that conclusion is still an issue for the finder of fact.” As a result, excluding expert testimony is the exception rather than the rule, particularly since “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof’ can serve as the means to “attack[ ] shaky but admissible evidence.” In cases arising under the Lanham Act, the Court’s gatekeeper function is of heightened importance because the “pivotal legal question ... virtually demands [expert] survey research ... on [issues such as] consumer perception ....” Indeed, expert survey evidence is used more frequently in trademark law cases than in other areas of law, and courts have been advised to carefully scrutinize survey evidence particularly where a jury rather than a bench trial is contemplated. While errors in a survey’s methodology usually go to the weight accorded to the conclusions rather than its admissibility, the Second Circuit has made clear that this is “subject, of course, to Rule 403’s more general prohibition against evidence that is less probative than prejudicial or confusing.” Although it is the exception, “there will be occasions when the proffered survey is so flawed as to be completely unhelpful to the trier of fact ....” and “its probative value is substantially outweighed by its prejudicial effect.” As evident from the Report and Recommendation (“R & R”) issued by Professor Daniel J. Capra of Fordham University School of Law and Professor Barton Beebe of Cardozo School of Law (collectively, the “Special Masters”), much of the expert testimony proffered by the parties here warrants exclusion. The Special Masters acknowledged that their recommendation to exclude the majority of the expert testimony may seem “drastic.” They justify their conclusions, inter alia, on the ground that while methodological flaws in a survey generally raise questions of weight rather than admissibility, “questions of weight, when sufficiently accumulated, become so serious as to require exclusion.” The Special Masters further noted that the majority of the testimony presented “easy cases” for exclusion, but nevertheless, they aimed to “give each submission a fair reading with an evenhanded application of the law.” Although the parties might regard the R & R to be severe in the scope of its recommended exclusions, the Second Circuit Court of Appeals and the lower courts within this Circuit provide support for the exclusion of survey evidence primarily under Rule 403 but also under Rule 702 where flaws are deemed to cumulatively undermine its relevance and reliability. Additionally, other courts considering the admissibility of expert survey evidence in trademark suits have reached similar conclusions. Upon review of the R & R, it is beyond cavil that the Special Masters discharged their duty with careful consideration and thoughtful analysis of the parties’ opposing positions, the factual details of the expert reports and testimony at issue, the relevant evidentiary rules, and the case law. The Special Masters considered each expert’s survey on its own terms and while the number of exclusions may seem large, that is more properly attributed to the number of experts proffered by the parties than to over-exclusion by the Special Masters. Subject only to the modifications set forth in this Opinion, the Special Masters’ R & R is adopted and will be published as the Memorandum and Order of the Court. II. BACKGROUND On March 16, 2007, defendant Dooney & Burke, Inc. (“Dooney & Burke”) filed motions in limine to exclude the testimony and reports of plaintiff Louis Vuitton Mal-letier’s (“Louis Vuitton” or “LV”) experts: Drs. Richard A. Holub, Eugene Ericksen, Jacob Jacoby, and Mr. West Anson. On March 19, 2007, Louis Vuitton filed motions in limine to exclude the testimony and reports of Dooney & Burke’s experts: Drs. Robert N. Reitter and Bradford Cornell. In light of the volume of the submissions on these motions, the Court appointed the Special Masters pursuant to Federal Rule of Civil Procedure 53(a)(1)(A) and (a)(1)(C) and by Order dated May 18, 2007 (the “May 18 Order”). Pursuant to the May 18 Order, the Special Masters were directed to submit to the Court a collaborative R & R on the pending motions no later than thirty days from May 18, 2007. On June 15, 2007, the Special Masters issued an extensive R & R spanning one hundred and ninety-two pages. On July 5, 2007, Louis Vuitton objected to the R & R on the ground that the Special Masters had erred in excluding in their entirety the testimony and reports of its three survey experts. Louis Vuitton also objected to the exclusion, in part, of the testimony and report of its damages expert. Dooney & Bourke moved to adopt the R & R as to five of the six experts at issue, and conditionally objected to the exclusion of its survey expert’s report and testimony on the level of consumer confusion in late 2006, as well as the exclusion of his trademark dilution study. III. APPLICABLE LAW A. Federal Rule of Civil Procedure 53 Pursuant to Rule 53(g)(1), “in acting on a [special] master’s order, the court must afford an opportunity [for the parties] to be heard and may receive evidence, and may: adopt or affirm; modify; wholly or partly reject or reverse; or resubmit to the master with instructions.” As set forth in the May 18 Order and consistent with Rule 53(g)(3)-(4), the Court reviews de novo all objections to conclusions of law made or recommended by the Special Masters. All findings of fact made by the Special Masters are reviewed by the Court for clear error. Any rulings made by the Special Masters on procedural matters are to be set aside only if the Court finds an abuse of discretion. B. Admission of Expert Testimony The proponent of expert evidence must establish admissibility under Rule 104(a) of the Federal Rules of Evidence by a “preponderance of proof.” Rule 702 of the Federal Rules of Evidence states the following requirements for the admission of expert testimony: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Under Rule 702 and Daubert, the trial judge must determine whether the proposed testimony “both rests on a reliable foundation and is relevant to the task at hand.” A district court must act as “a gatekeeper to exclude invalid and unreliable expert testimony.” In doing so, the court’s focus must be on the principles and methodologies underlying the expert’s conclusions, rather than on the conclusions themselves. Expert testimony may not usurp the role of the court in determining the applicable law. Although an expert “may opine on an issue of fact,” an expert “may not give testimony stating ultimate legal conclusions based on those facts,” Expert testimony is inadmissible when it addresses “lay matters which [the trier of fact] is capable of understanding and deciding without the expert’s help.” In addition, Rule 403 states that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 ... exercises more control over experts than over lay witnesses.” IV. DISCUSSION As an initial matter, I address Louis Vuitton’s argument that Special Master Beebe’s previously undisclosed interactions with a former Dooney & Bourke attorney, Jeremy Sheff&emdash;who continues to practice with counsel for defendant but is no longer involved with the instant litigation&emdash;warrants his disqualification and the “disregard! ] in its entirety” of the R & R. By letter dated July 6, 2007, Louis Vuitton informed the Court of its “recent[ ] discover[y]” that, in 2006, Special Master Beebe had commented on a draft of Sheff s legal article on trademark law and dilution, but had failed to disclose this prior to his appointment. Louis Vuitton contends that Special Master Beebe’s “prior relationship” with a Dooney & Bourke attorney and their “collaboration on a project specifically regarding trademark law and dilution” constitute material facts that should have been disclosed prior to his appointment. According to Louis Vuitton, Special Master Beebe’s failure to disclose the “relationship” has created an appearance of impropriety that casts doubt on the impartiality of the R & R, particularly in light of the R & R’s “heavy weight in Dooney [ & Bourke]’s favor.” Dooney & Bourke acknowledges that Special Master Beebe and Sheff made contact, but disputes the existence of any “relationship” that might warrant disqualification or the wholesale disregard of the R & R. Dooney & Bourke states that Sheff “has not had any responsibility” in its representation since May 2005, and was not aware of Special Master Beebe’s appointment in this action. Moreover, no Dooney & Bourke attorney was aware that Sheff had contacted Special Master Beebe for comments on a draft law review article in the past, nor did they know that Sheff had later thanked Special Master Beebe in the final version of that article. By letter dated July 11, 2007, Special Master Beebe informed the Court that in August 2006, at Sheffs initiative, the two had briefly corresponded regarding Sheffs legal article on issues of trademark law as well as the legal market for professorships. Special Master Beebe confirms that he has never met or spoken with Sheff, and that his limited review of Sheffs article and the correspondence itself stemmed from his duties as part of Cardozo Law School’s Hiring Committee, as well as his own sense of obligation as “a member of the legal academic community.” Special Master Beebe further wrote that he does not recall Sheffs paper, and is not aware of Sheffs current employment situation. Under Rule 53(a)(2), a special master “must not have a relationship to the parties, counsel, action, or court that would require disqualification of a judge under 28 U.S.C. § 455 (“section 455”) unless the parties consent with the court’s approval to appointment ... after disclosure of any potential grounds for disqualification.” Section 455(a) requires a judge’s disqualification “in any proceeding in which his impartiality might reasonably be questioned.” The Second Circuit has stated that section 455(a) “sets out an objective standard for recusal,” that is, “ ‘whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.’ ” Section 455(b)(1) requires the disqualification of a judge “[wjhere he has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentia-ry facts concerning the proceeding.” Section 455 neither requires the disqualification of Special Master Beebe nor the disregard of the R & R. The Court’s review of the correspondence between Special Master Beebe and Sheff confirms that their “connection” was isolated, brief, and limited to the discussion of Sheffs draft article and the legal market for professorships. The fact that the article’s subject matter is also trademark law and dilution is unremarkable given that Special Master Beebe specializes in intellectual property law. As such, it follows that his comments in that area of law are frequently solicited. Significantly, at no point in their brief correspondence did Sheff mention the instant litigation, his law firm’s representation of Dooney & Bourke, or his own prior participation in that representation. Considering the facts underlying the request to disqualify Special Master Beebe, no objective observer “would entertain a significant doubt that justice would be done in the case” or that the closely-reasoned and well-supported R & R should be wholesale rejected. Moreover, disqualification is not warranted under section 455(b)(1) as Louis Vuitton has offered absolutely no facts to demonstrate that Special Master Beebe harbors a “personal bias or prejudice concerning a party” or has “personal knowledge of disputed evidentia-ry facts” regarding this action. Indeed, courts in this circuit have held that section 455 does not require disqualification or recusal in far closer cases. While the pre-appointment disclosure of any such interactions are ideal, I am confident that this particular disclosure would not have precluded Special Master Beebe’s appointment had it been disclosed at the outset. For the foregoing reasons, Louis Vuitton’s motion to disqualify Special Master Beebe and to disregard the R & R is denied. A. Plaintiffs Experts 1. Dr. Eugene Ericksen Dr. Eugene Ericksen “conducted a hybrid consumer confusion and trademark dilution survey for Louis Vuitton between December 6, 2006 and December 31, 2006 ( [the] ‘Ericksen Survey’).” The Special Masters recommended the exclusion of the Ericksen Survey in its entirety under Federal Rules of Evidence 403 and 702 due to the cumulative effect of a number of flaws. These flaws include the use of an improper stimulus, the poor choice of a control bag, the failure to instruct respondents against guessing, the improper classification of respondents, as well as other significant methodological errors. Moreover, with respect to the trademark dilution component of the Ericksen Survey, the Special Masters found that Dr. Ericksen’s analysis was plagued by the same methodological flaws present in the confusion component, and also “proceeds from a fundamental misunderstanding of the theory of dilution by blurring,” improperly conflating it with consumer confusion. Finding no clear error in the Special Masters’ factual findings and reviewing their legal conclusions de novo, I adopt the Special Masters’ recommendation that Dr. Ericksen’s report and testimony be excluded in their entirety under Rules 702 and 403. The cumulative effect of the flaws outlined in the R & R render the report and testimony unreliable, and any probative value is substantially outweighed by the danger of unfair prejudice and misleading the jury. 2. Dr. Jacob Jacoby Dr. Jacob Jacoby was retained by Louis Vuitton to conduct a trademark confusion survey (the “Jacoby Confusion Survey”) and a dilution survey (the “Jacoby Dilution Survey”), both of which have been discussed by this Court in a prior opinion. As I have previously noted and as the Special Masters have also found, the “Ja-coby Confusion Survey [Report] does not, in fact, describe the actual survey that was undertaken.” The Special Masters found that the facts strongly suggest'that the Jacoby Confusion Survey was “not reported in an accurate manner and ... was not conducted in an objective manner,” and is therefore not reliable under Rule 702. The Special Masters also found significant flaws in the survey including the improper definition of its universe, the use of a survey question that asked respondents for a legal conclusion,, and the improper classification of certain respondents as confused “based on factors not relevant to the marks at issue.” In addition, the Special Masters found numerous, fundamental deficiencies in the Jacoby Dilution Study such as a lack of fit between the survey’s questions and the law of dilution, the improper coding and classification of several responses to the survey thus resulting in an “overstate[ment] of the number of respondents who were ‘diluted,’ ” and the unexplained inconsistency between the results of Dr. Jacoby’s pilot dilution study, which found “little to no net dilution” and the subsequent survey which found dilution. Finding no clear error in the Special Masters’ factual findings and reviewing their legal conclusions de novo, I adopt the Special Masters’ recommendation that Dr. Jacoby’s report and testimony be excluded in their entirety under Rules 702 and 403. In considering the cumulative effect of the numerous flaws identified by the Special Masters, it is clear that Dr. Jacoby’s report and testimony on the issues of both trademark confusion and dilution are unreliable. Moreover, any probative value is substantially outweighed by the danger of unfair prejudice and misleading the jury. 3. Dr. Richard A. Holub Dr. Richard Holub was retained by Louis Vuitton “to study and compare the use of color in the multicolor handbags of Dooney & Bourke and Louis Vuitton.” Specifically, Louis Vuitton offers Dr. Ho-lub’s testimony “for two purposes: (1) to prove the likelihood of confusion presented by Dooney [ & Bourkej’s multicolor logo; and (2) to prove Dooney [ & Bourkej’s willful intent to copy the Louis Vuitton Multicolore Monogram mark.” The Special Masters recommended that Dr. Ho-lub’s report and testimony be excluded in their entirety. With respect to the first purpose, the Special Masters concluded that Dr. Ho-lub’s highly technical report and testimony on the similarity of colors between the parties’ handbags would not be helpful to the jury because the jury members can observe for themselves whether Dooney & Bourke’s mark is confusingly similar to Louis Vuitton’s Multicolore Monogram mark. The jury can make that determination without the help of an expert and certainly without the expert’s “digital photography ... technical jargon and colorim-eter approximation.” Finding no clear error in the Special Masters’ factual findings and reviewing their legal conclusions de novo, I adopt the Special Masters’ recommendation that Dr. Holub’s report and testimony should be excluded to the extent they are offered for the purpose of proving the likelihood of confusion. With respect to Dr. Holub’s report and testimony offered for the purpose of proving intent to copy, the Special Masters noted that this presented a closer question as “Dooney & Bourke’s intent is potentially important in this case because, among other things, Louis Vuitton is seeking an accounting of Dooney & Bourke’s profits, and such an accounting is possible only upon a finding of willful intent on Dooney & Bourke’s part.” Further, with respect to damages, if Louis Vuitton can establish that Dooney & Bourke’s actions were intentionally deceptive, that gives rise to a rebuttable presumption of confusion. Indeed, the Special Masters recognized the potential probative value of Dr. Holub’s testimony on the issue of intent, noting “while it is true that Dooney & Bourke would not be liable for using even the same exact colors as Louis Vuitton ..., it is also true that evidence of copying the colors is at least probative of an intent to copy the Louis Vuitton mark itself.” Accordingly, the Special Masters stated that “on the question of intent[,] it could be helpful for the jurors to know exactly how much of the pallette was used in each mark, and the exact extent to which the colors used by Dooney & Bourke overlap with the colors used by Louis Vuitton.” “If Dooney & Bourke chose identical or very similar color combinations as were chosen by Louis Vuitton, that fact at least tends to prove an intent to infringe on Louis Vuitton’s mark.” Ultimately, however, the Special Masters concluded the risk is too great that the jury may be influenced by Dr. Holub’s testimony and improperly use it toward resolving the likelihood of confusion issue, even if instructed by the Court to consider it only for the issue of intent. Moreover, according to the Special Masters, the probative value of expert testimony on the overlapping colors, even on the intent issue, is diminished by the fact that the colors are not themselves the mark that Louis Vuitton seeks to protect. Additionally, the similarity between the colors may be supported by inferences other than an intent to copy, such as fashion trends. There is no clear error in the Special Masters’ factual findings. Reviewing their legal conclusions de novo, however, I hold that Dr. Holub’s testimony and report are admissible for the purpose of proving intent. Dr. Holub, however, may only testify to the extent of the overlapping use of colors in the Dooney & Bourke and Louis Vuitton multicolored monogram handbags. In doing so, I adopt the Special Masters’ suggestion that, should the Court allow Dr. Holub to testify on intent, he should “not be permitted to testify that his findings in fact indicated that Dooney & Bourke intentionally copied Louis Vuitton’s colors.” Although I recognize that there is a risk that the jury “may take [Dr. Holub’s] testimony [on the intent issue] as an instruction on how to decide the question of likelihood of confusion,” that risk can be minimized by a limiting instruction. In fact, although the Special Masters ultimately rejected this approach, they did note that the risk of prejudice and confusion posed by Dr. Holub’s testimony may be “lessened somewhat by a limiting instruction.” This Court has routinely relied upon limiting instructions to “remind[] the jury of its role and of the limits of expert testimony [and] clarify the extent of their consideration of such testimony.” Further, the Second Circuit has recognized a “strong presumption that ju-ríes follow limiting instructions.” With respect to the factors that the Special Masters found to diminish the testimony’s probative value, including the fact that the mark at issue consists of more than just colors, as well as inferences that may support color overlap other than intent to copy, those are relatively minor and can be addressed on cross-examination and opening and closing statements. The probative value of Dr. Holub’s report and testimony, limited to the overlap of colors between the Louis Vuitton and Dooney & Bourke marks, is not substantially outweighed by the dangers of unfair prejudice or confusing the jury. As a result, I will allow limited testimony by Dr. Holub. 4. Mr. Weston Anson Mr. Weston Anson was retained by Louis Vuitton to review financial documents and accounting information produced by Dooney & Bourke during the course of discovery and “to prove the amount of net profit that Dooney & Bourke derived from its assumed infringement on the Louis Vuitton Multicolore [Monogram] mark; and [] to prove that Louis Vuitton suffered dilution of its Mul-ticolore Monogram mark as a result of Dooney & Bourke’s infringement.” The Special Masters recommended that Mr. Anson’s report and testimony be excluded but for his testimony on the “amount of net profits that Dooney & Bourke obtained from the allegedly infringing sales.” Mr. Anson’s method of calculating net profits deducted only those costs directly incurred in the production of the allegedly infringing Dooney & Bourke handbags, but did not deduct a proportionate amount of general expenses such as overhead. Because the deduction of general expenses is required only if defendant can prove the connection between those expenses and the sales of the allegedly infringing items, the Special Masters qualified their recommendation to permit Mr. Anson’s testimony. Specifically, they recommended that Mr. Anson be permitted to testify to his calculation of Dooney & Bourke’s net profits, but only if Dooney & Bourke is unable to connect any general expenses to the sales generating those profits. If, however, Dooney & Bourke is able to do so, then Mr. Anson’s testimony must be adjusted to reflect the deduction. The Special Masters found that Mr. An-son’s dilution study does not “fit” with the substantive law of dilution because he “does not purport to connect a loss of sales [by Louis Vuitton] in the United States to a loss of reputation on the part of Louis Vuitton.” The Special Masters further found that Louis Vuitton had failed to cite any case “to support the proposition that a plaintiffs loss of sales coincident with a defendant’s achievefment of a] ‘critical mass’ in the marketplace necessarily implies a loss of reputation.” Moreover, the Special Masters identified a number of flaws in the dilution study. Chief among those flaws is a lack of fit between the basic premise of the study — ie., that Louis Vuitton suffered a loss of sales in the United States resulting from Dooney & Bourke’s marketing efforts — and Louis Vuitton’s oft-expressed position in this litigation — ie., that it does not claim lost profits. The Special Masters also found Mr. Anson’s opinion “that there is a statistically significant difference between sales of [Louis Vuitton’s] handbags in the United States and the rest of the world .... ” to be unreliable under Rule 702 due to his complete reliance on another expert who has not been produced in this action. The Special Masters concluded that Mr. Anson’s testimony on dilution constitutes “nothing but conduit testimony from an expert on a matter outside his field of expertise.” Finding no clear error in the Special Masters’ factual findings and reviewing their legal conclusions de novo, I adopt the Special Masters’ recommendation that Mr. Anson’s report and testimony be admitted in part and excluded in part, as set forth above, under Rules 702 and 403. In light of the number of serious flaws that plague Mr. Anson’s report and testimony, specifically on the issue of dilution, the probative value is substantially outweighed by the prejudicial effect and the serious potential to mislead the jury. B. Defendant’s Experts 1. Dr. Bradford Cornell I find no clear error in the Special Masters’ factual findings with respect to Dr. Bradford Cornell’s testimony and report on the issue of Louis Vuitton’s damages and Dooney & Bourke’s profits, and come to the same legal conclusions upon a de novo review. For those reasons and because neither party objects to the adoption of the R & R with respect to Dr. Cornell, I adopt the Special Masters’ recommendation and allow his testimony and report subject to the limitations set forth in the R & R. 2. Dr. Robert N. Reitter Dr. Robert N. Reitter was retained by Dooney & Bourke to conduct a trademark confusion survey and trademark recognition survey in 2004. Both surveys have been previously discussed by the Court. In 2006, Dr. Reitter was once again commissioned to conduct a second trademark confusion survey and a dilution survey. The Special Masters recommended that Dr. Reitter’s reports and testimony on all of these surveys be excluded in their entirety. Dooney & Bourke “does not challenge the Special Masters’ recommendation with respect to the 2004 [trademark confusion survey] or with the efforts to revive it” through the 2006 confusion survey. Rather, Dooney & Bourke objects on the ground that the Special Masters considered the 2006 confusion survey solely as a means to revive the 2004 confusion survey previously criticized by the Court. As such, Dooney & Bourke contends that the Special Masters failed to regard the 2006 confusion survey, standing alone, “as an independent study that found de minimis confusion as of late 2006” — specifically, November and December 2006. Although the Special Masters primarily regarded the 2006 confusion survey as a response to the Court’s criticisms of the 2004 survey, the Special Masters did conduct a careful analysis of the 2006 confusion survey, independent of the 2004 survey. In doing so, the Special Masters identified a number of flaws in the methodology of the 2006 confusion survey and explicitly noted that the 2006 survey “suffers from some of the same methodological flaws that beset the 2004 survey.” These flaws include: inappropriate selection of non-upscale malls for the survey; a low screening standard for respondents; a “far from ideal” sampling method that precluded within-location comparisons among respondents who were exposed to the control bag versus Dooney & Bourke bags with name hangtags versus Dooney & Bourke bags without name hangtags; the low number of respondents participating in the survey; and the failure to employ a methodology involving sequential presentation or “line-up” of stimuli which better approximates marketplace conditions. While the Special Masters remarked that each methodological flaw, standing alone, may not mandate exclusion, each flaw diminished the 2006 confusion survey’s reliability and probative value. Although a survey measuring the level of consumer confusion in late 2006 is of some probative value, the cumulative effect of the methodological flaws identified by the Special Masters so diminishes the reliability and probative value of the 2006 confusion survey that its exclusion is warranted under Rules 403 and 702. With respect to Dr. Reitter’s dilution study conducted in 2006, the Special Masters recommended that it be excluded in its entirety because “as designed, it could provide no reliable indication of whether the [Louis Vuitton] Multicolore mark was diluted.” Finding that Dr. Reitter’s dilution study “ ‘reveals little except that there is a high consumer recognition of the Louis Vuitton Monogram Multicolore marks’ ” and failed to measure dilution, the Special Masters recommended exclusion under Rules 702 and 403. Specifically, they concluded that Dr. Reitter failed to “preclude the possibility that ... the recognition level of the Louis Vuitton Mul-ticolore [m]ark might have been higher but for the existence in the marketplace of Dooney & Bourke It-Bags.” As such, it was conducted pursuant to “fundamentally flawed” reasoning that rendered it irrelevant to the dilution question and inadmissible. In addition, the Special Masters addressed other flaws that do not, standing alone, require exclusion but “quell[ ] any doubt about [the study’s] exclusion.” These flaws include the improper grouping of handbags in the study, which failed to simulate market conditions, and the failure to utilize follow-up questions to prompt respondents to explain their answers. Taken cumulatively, the methodological flaws identified by the Special Masters and the “fundamentally flawed reasoning” of the Reitter dilution study warrant its exclusion. Dooney & Bourke objects to the Special Masters’ recommended exclusion on the ground that “surely it is ‘relevant’ to know how strong the claimed mark is as a source-identifier-” But the study’s conclusion that the Louis Vuitton Multico-lore Monogram mark is still very strong does not address whether it has been diluted — rather, it speaks more to the strength of the mark itself and its fame, neither of which are disputed. To admit it as a “dilution” study poses a real threat of unfair prejudice and of misleading the jury. Rather than “settling] too high a bar for what evidence is ‘relevant,’ ” as Dooney & Bourke contends, the Special Masters properly found that the Reitter dilution study “casts no light” on the issue of dilution and amounts to an “ad hoc use of a new theory of testing dilution” that is unreliable. Finding no clear error in the Special Masters’ factual findings and reviewing their legal conclusions de novo, I adopt the Special Masters’ recommendation that Dr. Reitter’s report and testimony, including the 2006 confusion study and the dilution study, be excluded in their entirety. V. CONCLUSION For the reasons stated above, plaintiffs motions are granted in part and denied in part, and defendant’s motions are denied. The Clerk of the Court is directed to close the following motions: [Docket Entry Nos. 188, 194, 199, 204, 206]. A teleconference is scheduled for December 21, 2007, at 11:45 a.m. SO ORDERED. REPORT AND RECOMMENDATION OF THE SPECIAL MASTERS Professors BARTON BEEBE and DANIEL CAPRA, Special Masters. I.Legal Standards for Determining Admissibility of Expert Testimony IC A. Rule 702 and Daubert. U<) fc-lO B. Rule 403 . W OO C. Survey Evidence. OO lo D. Daubert Hearings. T — f OO II. The Survey Experts. UN| A. Dr. Eugene Ericksen. UNI 1. Facts. TO a. The Ericksen Survey Universe. TO b. The Ericksen Survey Stimuli. •■ÑP c. The Ericksen Survey Questions. C* d. Dr. Ericksen’s Confusion Analysis. ir- e. Dr. Ericksen’s Blurring Analysis . UJ 2. Discussion. T-1 a. Dr. Ericksen Used an Improper Stimulus. r-1 b. Dr. Ericksen’s Control Was Flawed. UJ c. Dr. Ericksen’s Confusion Analysis Is Flawed. d. Dr. Ericksen’s Blurring Analysis Is Flawed. TO 3. Summary on Admissibility of Testimony, Survey, and Expert Report of Dr. Ericksen . B. Dr. Jacob Jacoby . 1. The Jacoby Confusion Survey. 2. The Jacoby Dilution Survey. a. Facts . i. The Jacoby Dilution Survey Universe. ii. The Jacoby Dilution Survey Stimuli. iii. The Jacoby Dilution Survey Questions . iv. The Jacoby Dilution Survey Dilution Analysis. v. The Jacoby Dilution Survey Pilot Survey. b. Discussion. i. The Jacoby Dilution Survey is Not Relevant to the Issue of Dilution. ii. The Flaws in the Jacoby Dilution Survey’s Categorization of Results . iii. The Objectivity of the Jacoby Dilution Survey. C. Robert N. Reitter. 1. Facts. a. The 2004 Reitter Confusion Survey. i. The 2004 Reitter Confusion Survey Universe and Sample ii. The 2004 Reitter Confusion Survey Stimuli. iii. The 2004 Reitter Confusion Survey Questions. iv. The 2004 Reitter Confusion Survey Confusion Analysis .. b. The 2006 Reitter Confusion Survey. i. The 2006 Reitter Confusion Survey Universe and Sample ii. The 2006 Reitter Confusion Survey Stimuli. iii. The 2006 Reitter Confusion Survey Questions. iv. The 2006 Reitter Confusion Survey Confusion Analysis .. c. The 2006 Reitter Dilution Survey. i. The 2006 Reitter Dilution Survey Universe and Sample.. ii. The 2006 Reitter Dilution Survey Stimuli. iii. The 2006 Reitter Dilution Survey Questions. iv. The 2006 Reitter Dilution Survey Dilution Analysis. 2. Discussion. a. The Reitter Confusion Surveys. b. The Flaws in the 2004 Survey. i. Reading Test. ii. Ineffective Control Bag . iii. Coding Errors. iv. Choice of Malls and Universe of Respondents. v. The “Permission” Question . vi. Preliminary Summary on the Admissibility of the 2004 Reitter Confusion Survey. 05 CO c. Flaws in Methodology of the 2006 Confusion Survey. 05 CO i. Mall Selection. Oí CO ii. Sampling Method. 05 CO iii. Sample Sizes. 05 CO iv. Eveready Presentation. 05 CO v. Other Alleged Methodological Flaws in the 2006 Confusion Survey . CO CO (a) Poor Choice of Control Bag. CO CO (b) Reading Test. CO CO (c) Close Viewing Range. CO d. The Relation Between the 2004 Reitter Confusion Survey and the 2006 Reitter Confusion Survey. 05 CO ^ e. The 2006 Reitter Dilution Survey. 05 CO 05 i. The Relevance of the 2006 Reitter Dilution Survey. 05 CO 05 ii. The 2006 Reitter Dilution Survey Stimuli. 05 CO <1 iii. Reitter’s Failure to Ask the 2006 Dilution Survey Respondents to Explain Their Answers. OO CO CO 3. Summary on Reitter Surveys. 05 CO CO III. Dr. Richard A. Holub. A. Facts. B. Discussion. 1. Opinion offered to prove the likelihood of confusion. a. Qualifications:... i. Colorimetry... ii. Statistical probability. b. Reliability of conclusions on statistical probability. c. Proper Subject Matter. 2. Opinion offered to prove intent. a. Reliability. b. Proper Subject Matter. e. Rule 403. C. Summary on Dr. Holub. IV. The Damages Experts. 05 cn A. Weston Anson. 05 cn 1. Facts. 05 cn 2. Discussion. 05 ai a. Opinion Offered to Prove Dooney & Bourke’s Net Profits. 05 cti i. Qualifications. 05 cn ii. Statements in Anson’s Report Concerning the Existence of Infringement and Dilution. 05 or to iii. Reliability of Methods Used to Determine Dooney & Bourke’s Profits. ^ iO CO (a) Use of “incremental method” of deducting costs. lO CO (b) Attributing 100 percent of the net profits to the alleged infringement.1. LO co b. Opinion on Dilution. CO CO i. Lack of “Fit”/ Problem of Prejudice and Jury Confusion-CO co ii. Lack of “fit” with the substantive law of dilution.662 iii. Improper reliance on another expert.664 iv. Unreliability of regression analysis .666 3. Summary.669 B. Dr. Bradford Cornell.669 1. Facts.669 2. Discussion.671 a. Qualifications:.672 b. The Challenge to Dr. Cornell’s Four-Factor Test for Assessing Damages.672 c. The Challenge to Cornell’s Statistical Analysis of Louis Vuitton’s United States Sales.675 d. The Challenge to Cornell’s Report as Exceeding the Proper Scope of Expert Testimony.677 e. The Challenge to Cornell’s Use of the “Full Absorption” Method.678 3. Summary.679 V. Conclusion.679 Louis Vuitton Malletier (“Louis Vuitton”) brings this action against Dooney & Bourke, Inc. (“Dooney & Bourke”) alleging trademark infringement, trademark dilution, and unfair competition under the Lanham Act, 15 U.S.C. §§ 1051 et seq., and Section 301 of New York General Business Law. In her opinion dated August 27, 2004, Louis Vuitton Malletier v. Dooney & Bourke, Inc., 340 F.Supp.2d 415 (S.D.N.Y.2004) (“Vuitton /”), Judge Shira A. Scheindlin denied Louis Vuitton’s motion for a preliminary injunction. In its opinion dated June 30, 2006, Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108 (2d Cir.2006) (“Vuitton II”), the Second Circuit affirmed in part and vacated and remanded in part Judge Scheind-lin’s ruling in light of the Second Circuit’s opinion in Louis Vuitton Malletier v. Burlington Coat Factory Warehouse Corp., 426 F.3d 532 (2d Cir.2005). In anticipation now of a jury trial, the parties have fully submitted five motions in limine seeking to exclude the reports and testimony of six proposed experts. By Order dated May 18, 2007, Judge Scheindlin appointed the undersigned as Special Masters in this case and directed us to submit a collaborative Report and Recommendation to aid the Court in resolving these motions in limine. For the reasons given below, we respectfully recommend that (1) Dooney & Bourke’s Motion in Limine to Exclude the Reports, Testimony, and Opinions of Dr. Eugene Ericksen and Dr. Jacob Jacoby be granted in its entirety, (2) Louis Vuitton’s Motion in Limine to Exclude Dooney & Bourke’s Proposed Expert Opinions, Testimony, and Surveys of Dr. Robert N. Reit-ter be granted in its entirety; (3) Dooney & Bourke’s Motion in Limine to Exclude the Report, Testimony, and Opinions of Richard A. Holub be granted in its entirety (4) Dooney & Bourke’s Motion in Li-mine to Preclude the Report, Testimony, and Opinions of Mr. Weston Anson be granted in part and denied in part, and (5) Louis Vuitton’s Motion to Exclude Defendant Dooney & Bourke’s Proposed Expert Testimony of Dr. Bradford Cornell be granted in part and denied in part. The underlying facts of this case are set forth in Vuitton I, 340 F.Supp.2d at 424-428, and Vuitton II, 454 F.3d at 112-13, familiarity with which is assumed. In what follows, we use the term “Louis Vuitton Monogram Multicolore Mark” to denote the Louis Vuitton mark consisting of “(1) the interlocking initials [“L” and “V”] interspersed in a repeating pattern with the registered geometric shapes, (2) used in combination with the thirty-three special Murakami colors, (3) set against a white or black background.” Vuitton I, 340 F.Supp.2d at 438. See also Vuitton II, 454 F.3d at 115 (defining the Louis Vuitton mark at issue as “consisting of a design plus color, that is, the traditional Vuitton Toile pattern design — entwined LV initials with the three already described motifs— displayed in the 33 Murakami colors and printed on a white or black background.”). We use the term “Dooney & Bourke Multicolor Monogram Mark” to denote the pattern of interlocking “D” and “B” initials used by Dooney & Bourke on its It-Bags and imprinted on a white or black background. We proceed by setting forth the basic legal standards applicable to the admissibility of expert testimony in general and survey evidence in particular. We then move to the motions in limine for each expert. The law governing trademark infringement and dilution claims is interspersed throughout the discussion of the expert testimony. I. Legal Standards for Determining Admissibility of Expert Testimony A. Rule 702 and Daubert The admissibility of expert testimony is governed by the Federal Rules of Evidence. Federal Rule of Evidence 702 requires that a challenged expert must be qualified to testify on the basis of scientific, technical or other specialized knowledge, on a subject matter that “will assist the jury to understand the evidence or determine a fact in issue.” Thus, expert testimony is excluded under Rule 702 if it addresses “lay matters which the jury is capable of understanding and deciding without the expert’s help.” United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999). As amended in 2000, Rule 702 further requires that the expert s testimony must be (1) based on sufficient facts or data, (2) the product of reliable principles and methods, (3) reliably applied to the facts of the case. These three reliability-based requirements are intended to codify Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny. See Advisory Committee Note to the 2000 Amendment to Evidence Rule 702. Under Daubert, a court is required to ensure that challenged expert testimony “is not only relevant, but reliable.” 509 U.S. at 589, 113 S.Ct. 2786. The Court in Daubert charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony. Subsequently the Court in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), made clear that the gatekeep-ing function applies not just to scientific expert testimony as discussed in Daubert, but also to testimony based on technical or other specialized knowledge. Daubert set forth a non-exclusive list of factors for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert’s technique or theory can be or has been tested — that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied and the existence and maintenance of standards and controls that govern the application of the expert’s process; and (4) whether the technique or theory has been generally accepted in the relevant community of experts. 509 U.S. at 592-94, 113 S.Ct. 2786. The Court in Kumho declared that “the factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the- subject matter of his testimony.” Kumho, 526 U.S. at 150, 119 S.Ct. 1167. The Kumho Court emphasized that district courts have wide discretion both in determining the relevant factors to be employed in assessing the reliability of an expert’s testimony, and in determining whether that testimony is in fact reliable. Id. at 153, 119 S.Ct. 1167. See also Zuchowicz v. United States, 140 F.3d 381, 386 (2d Cir.1998) (decisions to admit or exclude expert testimony are evaluated under the “highly deferential abuse of discretion standard”). The ultimate inquiry for the district court is “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho, 526 U.S. at 151, 119 S.Ct. 1167. The proponent of the expert testimony must prove by a preponderance of the evidence that it is reliable. Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Admissibility does not depend on whether the judge agrees with the expert’s conclusion; the focus is instead on the expert’s methodology. Id. at 595, 113 S.Ct. 2786. Yet as the Court has recognized, “conclusions and methodology are not entirely distinct from one another.” General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). When an expert purports to apply principles and methods in accordance with professional standards, and yet reaches a conclusion that other experts in the field would not reach, “the trial court may fairly suspect that the' principles and methods have not been faithfully applied.” Committee Note to 2000 Amendment to Rule 702 (citing Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir.1996)). B. Rule 403 Rule 403 provides another source for excluding expert testimony. Under Rule 403, evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” The Court in Daubert emphasized that expert testimony “can be both powerful and quite misleading because of the difficulty of evaluating it.” 509 U.S. at 595, 113 S.Ct. 2786 (quotation omitted). Accordingly, the judge in applying Rule 403 must exercise “more control over experts than over lay witnesses.” Id. C. Survey Evidence Several of the experts challenged in this case are relying on surveys of potential purchasers of the handbags at issue. Survey evidence is generally admissible in cases alleging trademark infringement under the Lanham Act. See Sobering Corp. v. Pfizer Inc., 189 F.3d 218, 227-28 (2d Cir.1999) (endorsing the “modem view” that evidence of the state of mind of persons surveyed is not inadmissible as hearsay). To assess the admissibility of survey evidence, the court should consider a number of criteria, including whether: (1) the proper universe was examined and the representative sample was drawn from that universe; (2) the survey’s methodology and execution were in accordance with generally accepted standards of objective procedure and statistics in the field of such surveys; (3) the questions were leading or suggestive; (4) the data gathered were accurately reported; and (5) persons conducting the survey were recognized experts. Vuitton I, 340 F.Supp.2d at 433 (citation and alterations omitted). A trademark survey must also approximate marketplace conditions. Trouble v. Wet Seal, 179 F.Supp.2d 291, 308 (S.D.N.Y.2001) (“Although no survey can construct a perfect replica of ‘real world’ buying patterns, a survey must use a stimulus that, at a minimum, tests for confusion by roughly simulating marketplace conditions.”). “While errors in survey methodology usually go to weight of the evidence, a survey should be excluded under Rule 403, Fed. R.Evid., when its probative value is substantially outweighed by its prejudicial effect or potential to mislead the jury.” MasterCard Int’l Inc. v. First Nat’l Bank of Omaha, No. 02 Civ. 3691, 2004 WL 326708, at *11 (S.D.N.Y. Feb. 23, 2004) (citing Schering, 189 F.3d at 228). Thus, a survey “should be excluded under Rule 403 when it is so flawed in its methodology” that the survey proves little and the jury is very likely to be misled. Cache, Inc. v. M.Z. Berger & Co., 2001 WL 38283 at *6 (S.D.N.Y.). See also Starter Corp. v. Converse, Inc., 170 F.3d 286, 297 (2d Cir.1999) (“The District Court correctly found ... that a survey may be kept from the jury’s attention entirely by the trial judge if it is irrelevant to the issues.” (citation omitted)). While courts in the Second Circuit rely mainly on Rule 403 to exclude unreliable surveys, we note that Rule 702 is clearly applicable as well, because the result of a survey is essentially expert testimony, and Rule 702 requires that such testimony must be reliable. The bottom line is that if the survey suffers from substantial methodological flaws, it will be excluded under both Rule 403 and Rule 702. D. Daubert Hearings Courts often hold pretrial evidentiary hearings — known as Daubert hearings — to determine whether challenged expert testimony is reliable under Rule 702 and admissible under Rule 403. Whether to hold a Daubert hearing is within the discretion of the court. See Committee Note to 2000 Amendment to Rule 702 (noting that the Rule “makes no attempt to set forth procedural requirements for exercising the trial court’s gatekeeping function over expert testimony”). The failure to hold a Daubert hearing may be an abuse of discretion when the admissibility ruling is tantamount to a ruling on summary judgment and there are substantial disputed issues of fact that are pertinent to the reliability inquiry. See, e.g., Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 418 (3d Cir.1999). But see Oddi v. Ford Motor Co., 234 F.3d 136, 154 (3d Cir.2000) (no error in failing to hold Daubert hearing before excluding evidence and granting summary judgment; distinguishing Padillas as a case involving a thin record under which the court could not have evaluated the expert’s methods). A Daubert hearing is unnecessary when the evidentiary record pertinent to the expert opinions is already well-developed. For example, in Miller v. Baker Implement Co., 439 F.3d 407 (8th Cir.2006), the court found that the trial judge did not abuse discretion in excluding the plaintiffs expert testimony without a Daubert hearing. It noted that the plaintiff submitted affidavits, a detailed explanation of the proposed expert testimony and a legal memorandum addressing the expert evidence issues. The court noted that while Daubert hearings “may be necessary in some cases, the basic requirement under the law is that parties have an opportunity to be heard before the district court makes its decisions.” Miller v. Baker Implement, 439 F.3d at 412. See also Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir.2001) (Daubert hearing not required where the record was extensive and the Daubert issue was fully briefed by the parties). In this case, the parties have extensively briefed the issues pertinent to each expert’s testimony. Each of the challenged experts has been subject to a lengthy deposition. Each of the expert’s reports (as well as each of the reports of experts challenging the reliability of some of those reports) has been submitted to the court. It is difficult to think of anything missing from the presentation by the parties that could be pertinent to these in limine motions. Accordingly, we find that a Daubert hearing is unnecessary. II. The Survey Experts A. Dr. Eugene Ericksen Dr. Eugene Ericksen conducted a hybrid consumer confusion and trademark dilution survey for Louis Vuitton between December 6, 2006 and December 31, 2006 (“Ericksen Survey”). In essence, the Er-icksen Survey took the form of a mall intercept survey in which 308 respondents were shown one of three videos. In the first and second videos, the same woman was shown carrying a Dooney & Bourke bag bearing the Dooney & Bourke Multicolor Pattern imprinted on either a white or black background. In the third video, the woman was shown carrying a Coach bag as a control. After viewing the video, respondents were asked three key questions: (1) “Who do you think makes the handbag you saw on the video?”; (2) “Does the handbag you saw on the video call to mind any other brands?”; (3) “Do you think the maker of the handbag you saw in the video needed to get permission, authorization or licensing from any other company for the use of the multicolored design pattern of this handbag?” Overall, having found no confusion with respect to the Coach control bag, the Ericksen Survey found that 20.2 percent of 104 respondents who saw the first video believed that Louis Vuitton made the bag shown, and that 22.3 percent of the 103 respondents who viewed the second video believed that Louis Vuitton made the bag shown. With respect to dilution, Dr. Er-icksen found that “29.7 and 27.1 percent, respectively, of the qualified handbag consumers considered the white and black multicolored monogram patterns of the Dooney & Bourke handbags to be similar to the white and black Louis Vuitton multicolored monogram trademarks.” We find that the Ericksen Survey used a severely flawed methodology and is unreliable; as such its probative value is substantially outweighed by its prejudicial effect and potential to mislead the jury. Thus it is inadmissible under Rules 403 and 702. We therefore recommend that the Ericksen Survey be excluded in its entirety. We first describe the facts of the Ericksen Survey in more detail and then explain the reasoning behind our recommendation. 1. Facts Dr. Ericksen is a Professor of Sociology and Statistics at Temple University. He holds a Ph.D. in Sociology and an M.A. in Mathematical Statistics from the University of Michigan. Dr. Ericksen has published numerous articles on statistical sampling methods and census-taking, among other topics, and has submitted written testimony on the reliability of methods used in the United States Census before United States Senate and House of Representative Committees. Before conducting the survey at issue in this case, Dr. Erick-sen had conducted at least ten trademark confusion surveys. The Ericksen Survey constituted, however, the first time in his career that Dr. Ericksen used a video of a product being tested as the survey stimulus. The Ericksen Survey also constituted the first time in his career that Dr. Ericksen tested on the question of trademark dilution. Despite this possible lack of specialization, we find that Dr. Ericksen is sufficiently qualified to provide expert testimony under Rule 702. See, e.g., Stagl v. Delta Air Lines, Inc., 117 F.3d 76 (2d Cir.1997) (error to exclude expert testimony on whether an airport baggage claim area was unsafe due to its design; the witness had a master’s degrees in mechanical engineering and had consulted on the design of a number of public spaces; he was not unqualified simply because he had never designed an airport baggage claim area). a. The Ericksen Survey Universe In his report, Dr. Ericksen states that he designed the Ericksen Survey to test for initial interest and post-sale confusion and for dilution by blurring, but not for point-of-sale confusion or dilution by tar-nishment. Dr. Ericksen oversaw the administration of a mall intercept survey conducted in five malls located in the four U.S. Census regions (with two malls being used in the more populous “South” region). To serve as a location for the survey, a mall was required either to have a store in which Louis Vuitton handbags were sold or to have “upscale stores and be located in an area with higher than average income.” The Ericksen Report does not specify how many of the five malls used in the Ericksen Survey contained a freestanding Louis Vuitton store or a store that sold Louis Vuitton handbags at the time of the survey, and Dr. Ericksen was unable to specify the number in his deposition testimony. Each of the malls contained a Coach store. To qualify for the survey, a potential respondent was required to be a female aged sixteen or older who had either bought a handbag valued at $100 or more in the preceding year or planned to buy a handbag valued at $100 or more in the succeeding year. Dr. Ericksen reports that 89.3 percent of the respondents ultimately included in the survey sample qualified under both criteria. b. The Ericksen Survey Stimuli Upon being qualified for the survey, the survey respondent was taken into an interviewing room and seated three to five feet away from a 19- or 20-inch, standard-definition (i.e., non-high-definition) television screen. The respondent was then randomly assigned the number 1, 2, or 3. Each of these numbers was assigned to respondents at each of the five malls. The respondent was then shown one of three videos according to the number assigned to the respondent. Each of these videos showed the same young dark-haired woman wearing a white coat with a white fur-lined trim around the neck, walking first to thé right and then to the left before a white-painted cinderblock wall with a bag slung over the shoulder facing the camera. The camera was located approximately twenty-five feet from the model; the videographer used a lens which magnified the image by a factor of twelve. In each of the videos, the woman carried a different bag. The parties strenuously dispute the degree to which a respondent could perceive, if at all, the details of each of the bags shown in the videos. We first describe each of the three bags that the woman was actually carrying when she was being videotaped. We then describe the degree to which the videos showed the details of the bags. In Video # 1, the woman was carrying a Dooney & Bourke It-Bag bearing the Doo-ney & Bourke Multicolor Monogram Mark imprinted on a white background. This bag was similar in its structural design to the Louis Vuitton “Papillon” bag. As the woman walked to the left, a pink enameled heart hanging by a leather strap from one of the handles of the bag was visible to the camera. (The heart contained a Dooney & Bourke imprint, but as discussed below, the imprint could not be seen in the video). In Video # 2, the woman was carrying a Dooney & Bourke It-Bag bearing the Doo-ney & Bourke Multicolor Monogram Mark imprinted on a black background. This bag was somewhat similar in its structural design to the Louis Vuitton “Aurelia” bag, though the Dooney & Bourke bag did not display a central outer pocket. As the woman walked both to the right and to the left, the pink enameled heart was visible to the camera, but the lettering on it was not. In Video # 3, which showed the control bag, the woman carried a “Holiday Patchwork Totebag” produced by Coach, Inc. (“Coach Patchwork Bag”) and featured by Coach in its stores and catalogue at the time that Dr. Ericksen conducted his study. Dooney & Bourke asserts, and Louis Vuitton does not dispute, that the Coach Patchwork Bag is not similar in its patchwork design to any Louis Vuitton bag. The Coach Patchwork Bag was significantly larger than the Dooney & Bourke bags used in Videos # 1 and # 2. The fabric design of the Coach Patchwork Bag consisted of a patchwork of various sewn-together rectangles of leather and other material in green, burgundy, varying shades of brown, and one patch featuring a design akin to zebra stripes. On some of these rectangles was imprinted in a single color a stylized “C” in a repeating pattern. This “C” was significantly larger relative to the rest of the bag than the “D” and “B” on the bags shown in Videos # 1 and # 2. The bag did not otherwise bear any repeating monogram pattern. As the woman walked both to the right and to the left, a small Coach hangtag was visible to the camera. The parties dispute whether Dr. Erick-sen could have used a different Coach bag, if not a different bag altogether as a control. Dooney & Bourke has submitted into evidence numerous images of handbags produced by third-parties featuring a repeating monogram pattern,