LVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A. (209 F. Supp. 3d 612, 2016)

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge

In this trademark lawsuit, two fashion companies go toe-to-toe over the right to affix a metal plate to the toe of “luxury” men’s sneakers. Plaintiff LVL XIII Brands, Inc. (“LVL XIII,” pronounced “Level 13”) is a New York start-up company that manufactures, markets, and sells men’s luxury athletic footwear. LVL XIII brings this action against defendants Louis Vuitton Malletier S.A. and Louis Vuitton North America, Inc. (collectively, “LV”). It claims that LV, through its marketing and sale of the On the Road Sneaker (“OTR Sneaker”), infringed LVL XIII’s trademark rights in a metal toe plate (the “TP”) which was featured on all shoes in LVL XIII’s first sneaker collection.

LVL XIII brings claims for (1) trademark infringement, unfair competition, and false designation of origin, under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (2) New York common law unfair competition; and (3) deceptive business practices, under New York General Business Law (“GBL”) § 349. It seeks actual and punitive damages, costs and fees, and an injunction barring LV from selling footwear bearing the allegedly infringing toe plate.

In response, LV brings counterclaims for (1) a declaratory judgment, under 28 U.S.C. § 2201, that LVL XIII has no exclusive right in the shape of a rectangular metal toe plate; and (2) an injunction requiring LVL XIII to disclaim the non-distinctive elements of the TP. Separately, it brings counterclaims for trademark infringement, unfair competition, and false designation of origin under the Lanham Act, based on LVL XIII’s alleged infringement of LV’s monogram mark (the “Initials Logo”). In connection with those counterclaims, LV seeks damages, costs and fees, and an injunction barring LVL XIII from continuing to use its “LVL XIII” mark or any other mark confusingly similar to the Initials Logo.

The parties have filed cross-motions for summary judgment on each of LVL XIII’s claims. In connection with its summary judgment motion, LV has also moved to preclude the report and testimony of LVL XIII’s expert witness. Separately, LVL XIII has moved for summary judgment on each of LV’s counterclaims.

For the reasons that follow, the Court grants (1) LV’s motion to preclude LVL XIII’s expert; (2) LV’s motion for summary judgment on each of LVL XIII’s claims; and (3) LVL XIII’s motion for summary judgment on each of LV’s counterclaims. The Court denies LVL XIII’s motion for summary judgment on its own claims.

The end result is that all claims in this lawsuit are dismissed.

I. Background

A. Factual Background

1. LVL XIII and its First Sneaker Collection

a. The Launch of LVL XIII’s First Sneaker Collection

LVL XIII is a New York start-up company founded by Antonio Brown. JSF ¶¶ 1-2. Brown long had the goal of starting a luxury footwear company; in the mid-2000s, he began to collect images of shoes as a hobby. Def. Supp. 56.1 ¶ 277. In summer 2012, Brown began soliciting capital contributions from Mends and family, and recruiting artists and graphic designers, to help bring his visions to life. See id. ¶¶ 278-80. The designs that would serve as the basis for LVL XIII’s first sneaker collection were developed in September and October 2013. See id. ¶¶ 281, 284. Sometime thereafter, they were submitted to a factory in Hong Kong to be made into samples. Id. ¶ 285. Each design featured the TP—a rectangular metal toe plate with a “LVL XIII inscription” secured to the front out-sole of the sneaker by metal screws. See MacMull Deck, Ex. 5. Brown testified that he wanted the TP to “distinguish [his] brand from the market”—to be something that could “identify [his] shoe design from the rest of the shoes.” MacMull Deck, Ex. 1 (“Brown Dep. I”), at 137.

In December 2012, LVL XIII was incorporated in New York. Def. Supp. 56.1 ¶ 286. By March 2013, it began preparing a formal business plan with the help of a third-party vendor. Id. ¶ 287. The business plan was completed and distributed to investors sometime after November 2013. Id. ¶ 288. It states that “LVL XIII believes its typical consumer will be an affluent male between the ages of 17 and 35 years of age who appreciates luxury goods and typically shops for designer labels.” JSF ¶ 13.

In January 2013, LVL XIII hired La-' mont Johnson to serve as its publicist. Sloane Decl., Ex. 3 (“Brown Dep. III”), at 172. Brown testified that because LVL XIII was operating on a “shoestring budget,” he and Johnson knew it would be hard to obtain formal ad placements in major publications. MacMull Decl., Ex. 2 (“Brown Dep. II”), at 173-74. Accordingly, he testified, the two men “creatively came together... [and devised] creative ways to submit the brand for press and publicity[,] like ceding shoes to celebrities and ... editors ... [to] garner[ ] interest.” Id. at 174. One of those celebrities was pop star Jason Derulo, who, on July 19, 2013, performed on Good Morning America wearing LVL XIII sneakers. Def. Supp. 56.1 ¶ 296. Another was pop star Chris Brown, who, in September 2013, wore a pair of LVL XIII sneakers during a photo shoot for Annex Man Magazine. Id. ¶ 301. According to Brown and Johnson, LVL XIII sneakers were also publicly worn by Kroy Biermann, Jim Jones, DeRay Davis, and Chris Rock. Id. ¶ 331.

In addition to reaching out to celebrities, LVL XIII leveraged its social media presence to garner free publicity. See id. ¶¶ 298-99. In April 2013, Brown began posting images of LVL XIII sneakers on his personal Instagram account, which, by then, had 50,000 followers. Id. ¶ 300; see Sloane Deck, Ex. 39 (“Media Placements”), at 1. In June 2013, LVL XIII posted its first Instagram. See Media Placements, at 1; Sloane Deck, Ex. 6 (“Johnson Dep. I”), at 66-67. Brown testified that social media has been a cornerstone of LVL XIII’s brand development. Def. Supp. 56.1 ¶ 298.

Between July 21 and 23, 2013, LVL XIII debuted its first sneaker collection at the Project Sole event in New York City. Id. ¶ 293. There, samples of LVL XIII sneakers were displayed to retailers, from whom LVL XIII began taking orders and deposits. Id. ¶ 295; JSF ¶21. At the end of the event, male supermodel Tyson Beckford hosted a launch party for LVL XIII in New York City. Def. Supp. 56.1 ¶ 294. In August 2013, LVL XIII exhibited its sneakers at the Magic Show, a trade show in Las Vegas attended by wholesalers, retailers, press, and celebrities. Id. ¶ 302.

In the months that followed, Brown and LVL XIII were featured in a handful of online magazines including Details, Ebony, Payer, and Footwear News. Id. ¶ 297. The majority of the brand’s media coverage, however, was on social media platforms and online blogs. See Media Placements. LVL XIII estimates that, in 2013, it spent a total of approximately $82,000 in connection with marketing, advertising, and promotion. JSF ¶ 35. Of that, approximately $15,000 was spent on the New York launch party, approximately $10,000 on the Project Sole Trade Show, approximately $10,000 on the Magic Show, and approximately $30,000 on monthly payments to LVL XIII’s publicist. PI. 56.1 ¶ 163; Brown Dep. II, at 172-73; Def. Supp. 56.1 ¶ 330. Brown testified that LVL XIII did not engage in TV advertising or purchase any newspaper or magazine advertisements. Brown Dep. I, at 158-59. As he explained, he “didn’t feel like it was necessary to invest [LVL XIII’s] dollars into print ads and things of that nature, especially with the dying business of print publications this day and age.” Brown Dep. II, at 175-76.

In November 2013, LVL XIII’s first sneaker collection became available for purchase at retail. PI. 56.1 ¶ 230. LVL XIII produced 1,000 pairs of sneakers for it, each of which featured the TP. JSF ¶ 31; Def. Supp. 56.1 ¶ 325. The sneakers were sold at prices between $495 and $1,200, with most priced between $495 and $595. Pl. 56.1 ¶¶ 154-55. Between November 2013 and March 2014, they were sold in at least 10 locations, including in Houston, Texas; Atlanta, Georgia; Los Angeles, California; Harvey, Illinois; Chicago, Illinois; Miami, Florida; and Washington D.C. Id. ¶ 234. They were also sold through the Carbon Bazaar website. Id. ¶¶ 246-47. LVL XIII estimates that it sold approximately 500 pairs of sneakers from its first collection. JSF ¶ 32. The remaining 500 pairs were returned to LVL XIII to be donated. Id. ¶ 33. In total, LVL XIII achieved $141,241 in product sales in 2013. Id. ¶34.

b. LVL XIII’s Efforts to Obtain Trademark Protection for its Marks

In March 2013, LVL XIII filed two trademark registration applications with the U.S. Patent and Trademark Office (“PTO”). JSF ¶¶ 11-12. The first (the “ ’370 Application”), filed on March 4, was for the word mark “LVL XIII.” Id. ¶ 11. The second (the “ ’102 Application”), filed on March 6, sought registration for a “shoe toe design featuring a rectangular metal plate across the front of the shoe toe with the wording LVL XIII engraved in the metal plate, and four small screws in the corners of the metal plate.” Id. ¶ 12; Sloane Deck, Ex. 32, at 1.

On June 24, 2013, the PTO issued a non-final Office Action as to the ’102 Application, requiring LVL XIII to submit a new drawing showing the screws in dotted lines, “as they cannot be part of the mark.” PI. 56.1 ¶ 102. The next day, LVL XIII submitted a revised application in accordance with the PTO’s directive. Id. ¶¶ 104-05. It stated:

LVL XIII (Stylized and/or with Design, see mark)—The applicant is not claiming color as a feature of the mark. The mark consists of a shoe toe design featuring a rectangular metal plate across the front of the shoe toe with the wording LVL XIII engraved in the metal plate, and four small screws in the corners of the metal plate. The dotted lines in the drawing are not part of the mark but show its position on the goods.

Id. ¶ 106. LVL XIII later amended the ’102 Application to include two screws rather than four. Id. ¶ 107.

On July 10 and August 7, 2013, respectively, the PTO issued a Notice of Publication for the ’370 and ’102 Applications. JSF ¶¶ 22, 24. On September 24 and October 22, 2013, respectively, it issued a Notice of Allowance for each application. Id. ¶¶ 25-26. On March 24 and April 7, 2014, respectively, LVL XIII submitted a Statement of Use in connection with each application. Id. ¶¶ 37-38. Each stated that LVL XIII had first used the claimed mark in commerce “at least as early as” August 1, 2013. Id. On May 27, 2014, the PTO issued a Registration Certificate for the ’370 Application. Id. ¶ 41.

On July 18, 2014, two weeks after the initiation of this lawsuit, the PTO issued an Office Action for the 102 Application, declining to approve the application in its current form. See id. ¶¶ 43-44. It explained that “[a] product design can never be inherently distinctive as a matter of law [because] consumers are aware that such designs are intended to render the goods more useful or appealing rather than [to] identify their source.” Id. ¶ 44. Accordingly, it directed, LVL XIII must “disclaim[ ] ... the rectangular shape of the shoe toe plate ... because it is a configuration of a feature of the shoe design.” Id. It warned that if LVL XIII did not do so, the PTO “may refuse to register the entire mark.” Id. Sometime thereafter, the PTO, at LVL XIII’s request, suspended the 102 Application, pending the outcome of this lawsuit. Id. ¶ 45.

2. Louis Vuitton

Louis Vuitton Malletier S.A. (“LVM”) is a French company, founded in Paris in 1854. PI. Supp. 56.1 ¶ 374. It manufactures, sells, and distributes luxury merchandise, including handbags, luggage, apparel, shoes, watches, jewelry, and other fashion accessories. JSF ¶¶ 7-8. Louis Vuitton North America, Inc. is a Delaware corporation that markets and distributes Louis Vuitton merchandise in the U.S. Id. ¶¶ 5-6.

a. The Initials Logo

The Initials Logo consists of a stylized “L” and V’ presented, in a Roman-like font, as a single, interlocking image, with the “V’ overlapping the italicized “L” on a downward angle from right to left. The logo was created in 1897 by George Vuitton, in honor of his late father Louis Vuitton, the founder of the House of Louis Vuitton. PI. Supp. 56.1 ¶ 375. It has been continuously used for more than 100 years in the U.S., and currently appears on hundreds of LV products. Id. ¶ 376.

LVM owns multiple registered U.S. trademarks for the Initials Logo, which apply to a wide variety of goods ranging from clothing to suitcases and stationery. See generally Sloane Deck, Ex. 59. Among these is a registered mark, which has become incontestable, for use of the Initials Logo on “shoes, boots[,] sandals, [and] tips for footwear.” Id. at 1-3.

LV advertisements, at least some of which feature the Initials Logo, have appeared in magazines such as Vanity Fair, Vogue, and Elle. Pl. Supp. 56.1 ¶ 378. LV has also received media coverage in publications such as Marie Claire, Town & Country, and the “Pop Sugar” online blog. Id. ¶ 379. In 2015, Interbrand Rankings and Brand Z ranked LV as one of the 100 most valuable global brands. Id. ¶ 381.

b. The OTR Sneaker

LVL XIII’s claims arise from LV’s use of a metal toe plate on its OTR Sneaker. That sneaker was designed and developed in June 2013, in the weeks leading up to LVs Men’s Spring/Summer 2014 fashion show (the “Fashion Show”), which took place in Paris on June 27, 2013. Sloane Deck, Ex. 1 (‘Viti Aff’) ¶ 5. Fabrizio Viti, the Style Director for LVM’s footwear division, oversaw the design process. See Dkt. 112 (‘Viti Deck”) ¶¶ 1, 5.

The theme for the Fashion Show was a “road trip” through 1950s Americana, focusing on the style of icons such as James Dean, Steve McQueen, and Jack Kerouac, and mixing in an “astronaut mood.” PI. 56.1 ¶¶ 32, 40. In keeping with that theme, Viti decided to use the Converse Jack Purcell sneaker, worn by James Dean in a famous photo, as the inspiration for his design for the OTR Sneaker. Id. ¶ 41; Viti Aff. ¶ 6; Sloane Deck, Ex. 9 (‘Viti Dep. I”), at 26-28. An identifying feature of the Jack Purcell sneaker is the “smile,” a thin dark rubber inset curving upwards in the sneaker’s rubber toe. PI. 56.1 ¶ 42. Accordingly, the initial design for the OTR Sneaker (then called the “Dean”) included a thin metal strip inset into the shoe’s outsole, which Viti described as LVM’s “reinterpretation of the Jack Purcell [smile] with contemporary features.” Viti Deck ¶ 8. Viti attested that this “reinterpretation” was informed by his knowledge of “metal detailing,” i.e., the ornamental use of metal accents, which had been trending among high-end shoe designers, including LV, for several years. See PI. 56.1 ¶¶43, 55-56.

On June 7, 2013, a member of LVs design team emailed the prototype for the OTR Sneaker to LV’s in-house legal department. PI. 56.1 ¶ 50; see Sloane Deck, Ex. 20. The email identified several characteristics of the Jack Purcell sneaker and asked whether, legally speaking, there were enough areas of difference between those two shoes. PI. 56.1 ¶ 51; see Sloane Deck, Exs. 20-21. On June 10, 2013, LV’s legal department responded that “there [was] a degree of risk attached” to LVs use of the “smile.” PI. 56.1 ¶¶ 53-54.

The next day, Viti’s assistant Mathieu Desmet emailed Viti, stating that “due to leg[a]l issue we need to change [th]e sneakers from the show.” Def. Supp. 56.1 ¶ 308; see also Sloane Deck, Ex. 57 (‘Viti Dep. II”), at 38-40. Desmet attached to his email a revised design for the OTR Sneaker, which featured a thicker metal plate at the toe of the shoe. Def. Supp. 56.1 ¶ 309; PI. 56.1 ¶ 60. That design was later revised because Viti and LVs Artistic Director believed the metal plate was too large and “looked like a car.” PI. 56.1 ¶ 61.

The final version of the OTR Sneaker was reviewed at a model fitting on June 22, 2013. Id. ¶ 62. The design featured a plain metal toe plate in the shape of an isosceles trapezoid, with the top slightly shorter than the bottom, as a “subtle reference to the Jack Purcell [s]mile.” Viti Deck ¶ 9; see Sloane Deck, Ex. 27. The toe plate had rounded edges and was inset into the rubber shoe toe. Id. The design also featured a rectangular metal heel plate. PI. Supp. 56.1 ¶407. LVs “LOUIS VUITTON” trademark was imprinted on the sneaker’s heel plate, tongue, shoelace rivets, and insole. Id. The Initials Logo was imprinted on its rubber sole. Id.

On June 27, 2013, the OTR Sneaker was publicly debuted on the runway at the Fashion Show. PI. 56.1 ¶ 74. In the ensuing months, it was pictured in several print and online publications in the U.S. See id. ¶¶ 76, 78-80. On March 4, 2014, it became available for purchase by U.S. customers, exclusively through LV’s stores and website. Id. ¶¶ 83, 88. It was available in four basic styles, which ranged in price from $830 to $1,790. Id. ¶¶ 69, 84-87.

Between March 4 and September 13, 2014, LV sold 714 pairs of the OTR Sneaker in the U.S., generating $764,000 in revenue. Id. ¶¶ 90-91.

3. LVL XIII’s Discovery of the OTR Sneaker, Purported Confusion, and Aftermath

Brown first learned about the OTR Sneaker in March 2014, when celebrity stylist Shaundell Hall called him to ask whether LVL XIII was collaborating with LV. See Brown Dep. IV, at 385-86; Dkt. 132 (“Hall Deck”) ¶ 8. Hall attested that, upon first seeing the OTR Sneaker, he assumed there had been a collaboration between the two brands because of the similarities between the metal toe plates that appeared on each sneaker. Hall Deck ¶ 8.

LVL XIII has submitted declarations by six individuals, including Hall, who attest to having made such an assumption.' Four—Hall, Darius Baptist, Devon Johnson, and Eric Hamilton—are acquaintances of Brown’s. Each attested that, when he contacted Brown to inquire about the OTR Sneaker, Brown clarified that there had been no collaboration between the two brands.

The remaining two declarants—Tavius Bolton and Kathleen Roque—are consumers who bought LVL XIII sneakers in early 2014. See Bolton Deck ¶2; Roque Deck ¶ 3. Each attested that, upon later seeing the OTR Sneaker, he or she assumed that LVL XIII had collaborated with LV. See Bolton Deck ¶ 4; Roque Deck ¶ 4. Each attested that he had been disappointed by what he perceived as LVL XIII’s “selling out” to LV, and had been glad to learn that such was not the case. Bolton Deck ¶¶ 4-6; Roque Deck ¶¶ 6-9.

Brown testified that, shortly after his communication with Hall, LVL XIII began receiving “Instagram questions about whether or not [ ] the [OTR Sneaker] was LVL XIII.” Brown Dep. IV, at 386. LVL XIII has identified two Instagram posts and three text messages, which it claims evince such confusion. See Sloane Decl., Exs. 46-47. In total, LVL XIII has identified 12 individuals who it claims were confused whether LVL XIII had collaborated with LV. PI. 56.1 ¶¶ 267, 271-72. However, Brown testified that he is unaware of any potential consumers who: (1) at the point of purchase, were confused as to whether the OTR Sneaker was affiliated with, or related to, LVL XIII; (2) bought the OTR Sneaker while thinking it was really a LVL XIII sneaker; or (3) saw LVL XIII sneakers on the street and were confused whether they were produced by LV or LVL XIII. Brown Dep. IV, at 436-38.

On June 30, 2014, LVL XIII filed this lawsuit. Dkt. 1. Sometime thereafter, it removed its sneakers from the market. Def. Supp. 56.1 ¶ 339. Brown testified that a reason for that decision was that at least one retailer had refused to carry LVL XIII’s shoes due to concerns about this lawsuit. Brown Dep. IV, at 439-41; Brown Dep. II, at 446-48.

In September 2015, LVL XIII launched its second shoe collection. PI. 56.1 ¶ 128. The sneakers in that collection featured a new, modified toe plate, with rounded edges and no screws. Id. ¶¶ 130-32. The collection also included shoes without a metal toe plate. JSF ¶ 46.

B. Procedural History of This Litigation

On June 30, 2014, LVL XIII filed a complaint. Dkt. 1 (“Compl.”). On September 22, 2014, LV filed an answer and counterclaims. Dkt. 18. On October 9, 2014, LVL XIII filed an answer to LV’s counterclaims. Dkt. 21. On December 26, 2014, with leave of court, LV filed an amended answer and counterclaims. Dkt. 40. On January 16, 2015, LVL XIII filed an answer to the amended counterclaims. Dkt. 42.

On January 15, 2016, the parties filed the Joint Stipulated Facts, in anticipation of their respective forthcoming motions for summary judgment. Dkt. 102.

On January 21, 2016, LV moved to preclude the report and testimony of LVL XIII’s expert witness, Charles E. Colman, Dkt. 103, and filed a memorandum of law, Dkt. 104 (“Def. Daubert Br.”), and a declaration by its counsel, Dkt. 105, in support. That day, LV also filed a motion for summary judgment, Dkt. 106, along with a Rule 56.1 statement, Dkt. 110, a memorandum of law, Dkt. 108 (“Def. SJ Br.”), and supporting declarations, Dkts. 107, 109, 112,117.

On February 16, 2016, LVL XIII filed an opposition to LV’s motion to preclude LVL XIII’s expert. Dkt. 120 (“Pl. Daubert Opp. Br.”). That day, LVL XIII moved to preclude the testimony of LV’s expert witness, Michael Mazis. Dkts. 121-23. Also that day, LVL XIII filed a cross-motion for summary judgment, Dkt. 125, along with a memorandum of law, Dkt. 126 (PI. SJ Br.”), and a Rule 56.1 response and counterstatement, Dkt. 136. LVL XIII also filed nine supporting declarations, Dkts. 127-35, including by Erik Pelton, LVL XIII’s trademark counsel, Dkt. 129 (“Pel-ton Decl.”).

On March 15, 2016, LV filed an opposition to LVL XIII’s motion to preclude LV’s expert. Dkts. 145-47.

On March 22, 2016, LV filed reply briefs in support of its motion to preclude LVL XIII’s expert, Dkt. 148 (“Def. Daubert Reply Br.”), and its motion for summary judgment, Dkt. 152 (“Def. SJ Reply Br.”), along with supporting declarations, Dkts. 149, 153, and a supplemental Rule 56.1 statement, Dkt. 154. That day, LV also filed a motion to strike certain statements in LVL XIII’s 56.1 response and counter-statement and the Pelton Declaration. Dkts. 150-51,155.

On April 4, 2016, LVL XIII filed a reply brief in support of its motion to preclude LVs expert. Dkt. 159.

On April 21, 2016, LVL XIII filed a reply brief in support of its cross-motion for summary judgment, Dkt. 162 (“PI. SJ Reply Br.”), along with a response to LV’s supplemental Rule 56.1 statement, Dkt. 163. That day, LVL XIII also filed a brief in opposition to LV’s motion to strike. Dkt. 164.

On July 28, 2016, the Court heard argument. See Dkt. 172 (“Tr”). At the hearing, the Court ruled, at length, from the bench on LVL XIII’s motion to preclude LVs expert and LVs motion to strike. For the reasons stated on the record at the hearing, the Court denied both motions. See Dkt. 170; Tr. 3-42.

II. Discussion

Before the Court are (1) LV’s motion to preclude the report and testimony of LVL XIII’s expert witness; (2) the parties’ cross-motions for summary judgment on LVL XIII’s claims; and (3) LVL XIII’s motion for summary judgment on LV’s counterclaims. The ensuing analysis proceeds as follows: The Court first addresses, and grants, LVs motion to preclude the report and testimony of LVL XIII’s expert witness. The Court next addresses the cross-motions for summary judgment on LVL XIII’s claims. Finally, the Court addresses LVL XIII’s motion for summary judgment on LVs counterclaims.

III. LV’s Motion to Preclude LVL XIII’s Expert

LVL XÍII retained Charles E. Colman to provide an expert report and testimony on the issues of inherent distinctiveness and secondary meaning with regard to the TP. See Dkt. 105, Ex. 1 (“Colman Rpt”), at 1. LV has moved to preclude Colman’s report and testimony in their entirety pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). For the following reasons, that motion is granted.

A. Applicable Legal Standards

Federal Rule of Evidence 702 gives an expert witness testimonial latitude unavailable to others, “so long as the witness is ‘qualified as an expert’ and (1) ‘the testimony is based on sufficient facts or data,’ (2) ‘the testimony is the product of reliable principles and methods,’ and (3) ‘the expert has reliably applied the principles and methods to the facts of the case.’ ” United States v. Pryor, 474 Fed.Appx. 831, 834 (2d Cir.2012) (summary order) (quoting Fed. R. Evid. 702).

“[T]he proponent of expert testimony has the burden of establishing by a preponderance of the evidence that the admissibility requirements of Rule 702 are satisfied.” United States v. Williams, 506 F.3d 151, 160 (2d Cir.2007). As the Supreme Court emphasized in Daubert, it is the Court’s duty to act as a “gatekeep[er],” ensuring that an expert’s testimony “both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at 597, 113 S.Ct. 2786. The Court’s task “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 Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

The Second Circuit instructs district courts to exclude expert testimony if it is “speculative or conjectural or based on assumptions that are ‘so unrealistic and contradictory as to suggest bad faith.’ ” Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 214 (2d Cir.2009) (quoting Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir.1996)). Courts should also exclude “testimony that usurp[s] either the role of the trial judge instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.” Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir.2005) (internal quotation marks and citations omitted). Finally, as with all evidence, under Rule 403, the Court may exclude testimony if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, or delay. Hart v. Rick’s Cabaret Int’l, Inc., 60 F.Supp.3d 447, 465 (S.D.N.Y.2014).

B. Analysis

LV moves to exclude Colman’s report and testimony on the grounds that: (1) Colman is not qualified to offer expert testimony on any topic on which he opines; (2) his focus on the “urban male” population makes his opinions irrelevant and unreliable; and (3) his opinions are based on an unreliable methodology. The Court addresses these challenges in turn.

1. Colman is Not Qualified to Opine on Secondary Meaning

LV first argues that Colman is not qualified to offer expert testimony on any of the topics on which he opines. See Def. Daubert Br. 9-12; Def. Daubert Reply Br. 2-5.

“Whether a witness is qualified as an expert is a threshold question that precedes the court’s relevance and reliability inquiries.” Loyd v. United States, No. 08 Civ. 9016 (KNF), 2011 WL 1327043, at *4 (S.D.N.Y. Mar. 31, 2011) (citing Nimely, 414 F.3d at 396 n. 11). Rule 702 states that a witness may be “qualified as an expert by knowledge, skill, experience, training, or education.” The Second Circuit has instructed that these words “be read in light of the liberalizing purpose of’ Rule 702. United States v. Brown, 776 F.2d 397, 400 (2d Cir.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986). Accordingly, even if a proposed expert lacks formal training in a given area, he may still have “practical experience” or “specialized knowledge” that qualifies him to give opinion testimony. See McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir.1995) (internal quotation marks omitted) (quoting Fed. R. Evid. 702). However, “[i]f the witness is relying solely or primarily on experience, then [he] must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 691 F.Supp.2d 448, 473 n. 148 (S.D.N.Y.2010) (quoting Fed. R. Evid. 702 Advisory Committee Note). Where a witness’s “expertise is too general or too deficient,” the Court “may properly conclude that [he is] insufficiently qualified.” Stagl v. Delta Air Lines, Inc., 117 F.3d 76, 81 (2d Cir.1997).

Here, although Colman’s report addresses a range of topics, LVL XIII has clarified that it contains only one “core conclusion”: that LVL XIII’s TP achieved secondary meaning among the relevant consumer population before LVs OTR Sneaker came on the market—i. e., that, by March 2014, “in the minds of the public, the primary significance of [this] feature ... [was] to identify the source of the product rather than the product itself.” Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 216 (2d Cir.2012) (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 n. 11, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)) (internal quotation marks omitted); see Pl. Daubert Opp. Br. 8-9; see also id. at 15-16. The Court must thus resolve whether Col-man is qualified to opine on that issue,

a. Background

Colman is a 2009 law school graduate with a B.A. in linguistics. Colman Rpt., Appx. A, at 1. He was recently appointed Assistant Professor at the University of Hawaii William S. Richardson School of Law, where he will teach intellectual property law and other business-related subjects. Between 2013 and 2016, Colman was an Acting Assistant Professor at NYU School of Law, where he taught “Lawyer-ing” to first-year students, and, for one year, led a reading group on “Identity, Consumption, and American Law.” Colman Rpt., Appx. A, at 1. Between 2014 and 2016, he also served as an Adjunct Professor and Faculty Fellow in the “Visual Culture: Costume Studies” M.A. Program at NYU Steinhardt School of Culture, Education, and Human Development, where he taught a course on “Contemporary Dress.” Id.; Dkt. 105, Ex. 2 (“Colman Dep.”), at 105-06. In fall 2013, Colman taught a course, “Fashion and Power,” in NYU’s Media, Culture, and Communications Department. Colman Rpt. ¶ 5. In spring 2013, he co-taught, as a visiting lecturer, a course on “International Business Strategies and Fashion Law” at New York City’s Fashion Institute of Technology, Department of Marketing and International Trade. Id.; see also http://charles colmanlaw.com/about (accessed Aug. 1, 2016).

Since 2012, Colman has written, in various formats, on fashion and intellectual property law. See Colman Rpt. ¶¶ 13-14; id., Appx. A, at 2. He has contributed chapters on fashion and intellectual property law to practitioner reference guides and an undergraduate textbook. Id. ¶ 13. And he has published articles on fashion •history, the contemporary fashion landscape, intellectual property law, and related topics in academic and online journals. See id. ¶ 13-14. His book, Patents and Perverts: The Hidden Moral Agenda of American Design Law, is slated to be published by the Cambridge University Press in 2016-2017. Id. ¶ 14.

Since 2011, Colman has practiced intellectual property law through his sole proprietor firm Charles Colman, PLLC. Id. ¶ 9. That firm “cater[s] primarily to clients in the fashion, media, and related industries.” Id. To date, Colman has prosecuted approximately 10 trademark applications (approximately five of which were related to the fashion industry), and litigated approximately six oppositions or cancellation petitions. Colman Dep. 88-90, 206-07.

b. Analysis

LV argues that Colman is not qualified to opine on whether the TP acquired secondary meaning primarily because: (1) he did not conduct a marketing analysis or a secondary meaning survey; (2) he has no background or experience in fashion marketing; and (3) his practical experience in trademark law is too limited to supply relevant expertise. Def. Daubert Br. 10-12; Def. Reply Br. 2-4.

In response, LVL XIII argues that, “based on his extensive training, learning, experience[,] and recognition,” Colman has expertise in “intellectual property [law]; the history, business and culture of fashion; and the cultural matrix where' these intersect.” PI. Daubert Opp. Br. 1. LVL XIII asserts that Colman acquired that expertise “through many years spent in a university setting ... supplemented by thousands of hours of research, writing, and publishing on the fashion industry and U.S. intellectual property law, related cultural practices, and symbolic systems associated therewith[,] and years of professional experience spent representing parties in and writing about legal proceedings concerning the fashion industry.” Id. at 8. LVL XIII argues that such expertise “amply qualifies] [Colman] to testify on ... whether the LVL XIII toe plate achieved secondary meaning.” Id. at 9.

On this issue, the Court holds for LV. It is well established that even if “a witness qualifies as an expert with respect to certain matters or areas of knowledge, it by no means follows that he or she is qualified to express expert opinions as to other fields.” Nimely, 414 F.3d at 399 n. 13 (citation omitted); see also United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004) (“To determine whether a witness qualifies as an expert, courts compare the area in which the witness has superior knowledge, education, experience, or skill with the subject matter of the proffered testimony.”). Here, although Colman’s experience and education may qualify him as an expert in certain areas of fashion history and intellectual property law, LVL XIII has not shown how such expertise qualifies him to testify as to the central, and largely empirical, issue addressed in his report: whether the TP acquired secondary meaning.

“Because the primary element of secondary meaning is ‘a mental association in buyer[s’] minds between the alleged mark and a single source of the product,’ the determination whether a mark or dress has acquired secondary meaning is primarily an empirical inquiry.” Sunbeam Products, Inc. v. W. Bend Co., 123 F.3d 246, 253 (5th Cir.1997) (citation omitted) (emphasis in original). Accordingly, courts have long held that consumer surveys are the most persuasive evidence of secondary meaning. See, e.g., Sports Traveler, Inc. v. Advance Magazine Publishers, Inc. (“Sports Traveler II”), 25 F.Supp.2d 154, 164 (S.D.N.Y.1998) (“[Consumer surveys have become the usual way of demonstrating secondary meaning.”); Ergotron, Inc. v. Hergo Ergonomic Sup port Sys., Inc., No. 94 Civ. 2732(SAS), 1996 WL 143903, at *8 (S.D.N.Y.1996) (“A consumer survey is the most persuasive element in demonstrating secondary meaning, because such a survey provides direct evidence.”) (citing, inter alia, 20th Century Wear, Inc. v. Sanmark-Stardust Inc., 815 F.2d 8, 10 (2d Cir.1987), and Mattel, Inc. v. Azrak-Hamway Int’l, Inc., 724 F.2d 357, 361 (2d Cir.1983)). To be sure, consumer surveys are not the only form of evidence relevant to determining secondary meaning. Centaur Commc’ns, Ltd. v. A/S/M Commc’ns, Inc. (“Centaur II”), 830 F.2d 1217, 1223 (2d Cir.1987). As reviewed in detail infra, the Second Circuit has identified five other potentially relevant factors. Nevertheless, the ultimate determination of whether a particular trademark or trade dress has acquired secondary meaning remains an “empirical question of consumer association.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 770-71, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (internal quotation marks and citation omitted) (recognizing that it is “often prohibitively difficult” to conduct that inquiry).

The expertise most germane to such a determination thus involves training or experience performing empirical analyses. But as to this critical qualification, Col-man’s credentials are woefully deficient.

Colman does not appear to have any training or experience measuring secondary meaning—whether through a traditional marketing survey or otherwise. He purports to have done so here by employing “observational and analytical techniques” of the “Visual Culture Studies” (‘VCS”) canon.See Colman Rpt. ¶¶ 17, 19-20; Colman Dep. 61-63. But, even assuming arguendo that VCS supplies a reliable empirical methodology (which, as discussed infra, it does not), there is no basis for concluding that Colman has experience thus applying it. Colman testified that he has never served as an expert witness or used the VCS methodology to measure secondary meaning in connection with a legal case. Colman Dep. 80-81,190. In fact, although he represents that he has “spent hundreds of hours familiarizing [himself] with the Visual Cultural canon,” Colman Rpt. ¶ 3, he does not purport to have ever applied its techniques to test whether a particular trademark or trade dress had acquired secondary meaning. None of his publications entail or reveal any such endeavor.

Under these circumstances, the Court is “not persuaded that [Colman] can offer opinion testimony [as to whether the TP achieved secondary meaning] that is anything other than conjecture.” Loyd, 2011 WL 1327043, at *5 (“Though [a medical expert] need not be a specialist in the exact area of medicine implicated by the plaintiffs injury, he must have relevant experience and qualifications such that whatever opinion he will ultimately express would not be speculative.” (internal quotation marks and citation omitted)). The Court, therefore, holds that Colman is not qualified to offer expert testimony on this issue.

2. Colman’s Incorrect Assumption as to LVL XIII’s Customer Base Makes his Testimony Unhelpful and Unreliable

In a separate aspect of its Daubert challenge, LV argues that Colman’s assumption that “urban males” are LVL XIII’s primary customer base is incorrect, and makes his resulting opinions irrelevant and unreliable. See Def. Daubert Br. 13 & n. 3; Def. Daubert Reply Br. 5-6. That critique is persuasive.

To be admissible, expert testimony must be of the type that will “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. This means that the testimony must be both rehable and relevant in that it “fits” the facts of the case. Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786. The “fit” and “reliability” requirements overlap: Testimony is neither helpful nor reliable where “there is simply too great an analytical gap between the data [on which the expert relies] and the opinion proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

Here, LV argues that Colman’s opinions are, at best, unhelpful, and, at worst, unfairly prejudicial, because they rest on a faulty assumption: that LVL XIII’s customer base consisted primarily of “urban male[s] (i.e., African-American and African-American cultured-inclined) luxury footwear buyers between the ages of 17 and 36.” Colman Rpt. ¶ 22 (internal quotation marks omitted); see Def. Daubert Br. 13 & n. 3; Def. Daubert Reply Br. 5-6. The Court agrees.

At the outset of his report, Colman posits that “urban males” are LVL XIII’s primary customer base. Colman Rpt. ¶ 22. He then identifies characteristics of this demographic which he claims shape their perception as consumers. For instance, he states that such persons:

are, by and large, extremely sensitive to the nuances of what many fashion historians and theorists have described as “sneaker culture.” Accordingly, these consumers are attuned, whether consciously or not, to detect source indicators that are often far more subtle than the metal toe plate at issue in this case.

Id. ¶ 24. Based on this “extreme[ ] sensitivity,” Colman concludes that the TP is “likely to be perceived by—and has been perceived by—a significant majority ... of actual and potential consumers ... as an inherently distinctive indicator of source.” Id. ¶ 22; see also id. ¶¶ 24, 26, 29.

Colman similarly anchors his other opinions on this assumption about LVL XIII’s target market. These include that: (1) the TP achieved secondary meaning; (2) the TP “most likely served” as a “conventional trademark” rather than “product design”; and (3) the public will be harmed by LV’s alleged infringement of the TP. See id. ¶ 39(c) (“LVL XIII achieved [ ] widespread penetration” of “brand/visual-feature awareness ... among actual or potential urban male high-end luxury footwear consumers aged 17 to 36 before [LV] first used a confusingly similar toe plate in U.S. commerce.”); id. ¶¶ 23-24 (opining that, due to their “extreme[ ] sensitivity] to the nuances of ... ‘sneaker culture,’ ” urban males were not likely to perceive LVL XIII’s metal toe plate as product design); id. ¶ 39(d) (“The social media and remaining cultural landscape of 2013 reveal that Antonio Brown’s leadership of LVL XIII resonated for countless members of the consumer group identified above [i.e., urban males], in no small part because Mr. Brown has consistently espoused values (like genuine design innovation, pride in one’s individuality and accomplishments, and spiritual fulfillment) that a substantial portion of this group found compelling. The public would be harmed if [LV’s] confusing imitation of LVL XIII’s metal toe plate were permitted ... to (a) deprive LVL XIII of the financial means to create truly innovative designs ... and (b) disillusion the public, for whom Mr. Brown’s and LVL XIII’s beliefs and mission statement have so strongly resonated, by suggesting to the public that such idealistic ventures will only result in ‘selling out,’ failure, and/or being overpowered or ‘bullied’ by large, wealthy companies like defendants, without being protected by the courts.”).

This testimony fails Daubert’s “fit” requirement. It is a mismatch for the facts of this case, because Colman’s definition of the relevant consumer market lacks record foundation. Colman offers no factual basis for positing that “urban males” are a material segment of LVL XIII’s customer base. And LVL XIII has adduced no evidence to support that proposition. The record evidence is to the contrary: Testifying as LVL XIII’s 30(b)(6) witness, Brown stated that his brand was not tailored to “the hip hop urban market,” but was “more of a mainstream brand with mainstream appeal.” Brown Dep. IV, at 378. And, he testified, his Instagram “tailors more to a mainstream audience” than to “an urban or hip hop demographic.” Id. at 370. Finally, LVL XIII’s business plan identifies its “typical consumer” as “an affluent male ... who appreciates luxury goods and typically shops for designer la-bels”—it makes no mention of race or ethnicity. MacMull Deck, Ex. 6, at 19; see also JSF ¶ 9 (“LVL XIII is a start-up founded by Antonio Brown ... to introduce a line of luxury footwear catering to ‘affluent male consumers between the ages of 17 to 35 with an annual income in excess of $100,000.’ ”).

Under these circumstances, Colman’s characterization of LVL XIII’s target market as consisting predominantly of urban males is conjecture. To the extent that his opinions are based on that unsupported assumption, they are not relevant. Put differently, even if Colman had a reliable basis for concluding that urban males perceived the TP as a source identifier, that opinion would not assist the trier of fact in determining the pertinent issue in this case: whether the TP achieved secondary meaning among the relevant consumer population (ie., young affluent men— across all races—with the proclivity to purchase luxury footwear). Cf. Centaur Commc’ns, Ltd. v. A/S/M Commc’ns, Inc. (“Centaur I”), 652 F.Supp. 1105, 1110-11 (S.D.N.Y.1987) (secondary meaning survey of “dubious value” where its universe was not keyed to the relevant market), aff'd, 830 F.2d 1217 (2d Cir.1987); Bank of Texas v. Commerce Southwest, Inc., 741 F.2d 785, 789 (5th Cir.1984) (survey of a “population taken from an area ... comprising only a portion of the City of Dallas” insufficiently probative of whether service mark had acquired secondary meaning in the entire county). To the contrary, it would significantly risk misleading the factfin-der.

Because the danger of confusion substantially outweighs any trifling probative value of Colman’s proffered opinions, preclusion is required under both Rules 403 and 702.

3. Colman’s Methodology is Not Reliable

Finally, LV argues that Colman’s report and testimony must be precluded because his methodology is “neither discernable nor reliable.” Def. Dauhert Br. 14; see id. at 14-17; Def. Dauhert Reply Br. 6-9. That argument, too, is convincing.

a. Applicable Legal Standards

Under Dauhert, the Court must ensure that expert testimony “is not only relevant, but reliable,” 509 U.S. at 589, 113 S.Ct. 2786, that is, that the proffered testimony is “more than subjective belief or unsupported speculation,” id. at 590, 113 S.Ct. 2786. The Supreme Court has clarified that this “gate-keeping function applies not just to scientific expert testimony ... but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir.2000) (quoting Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167) (internal quotation marks omitted).

In Daubert, the Supreme Court set out a list of non-exclusive factors that the Court may consider in determin,ing whether an expert’s methodology is reliable. These are: (1) whether the expert’s technique or theory can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether there is a high error rate for the expert’s technique, and whether there are “standards controlling the technique’s operation”; and (4) whether the expert’s technique or theory is generally accepted by the relevant scientific community. Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786; accord Nimely, 414 F.3d at 396. How the Daubert factors apply in a particular case will depend on “the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho Tire, 526 U.S. at 150, 119 S.Ct. 1167. The Court “should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.” Id. at 152, 119 S.Ct. 1167.

“In addition to setting forth these criteria for testing an expert’s methodology, the Supreme Court has also stated that reliability within the meaning of Rule 702 requires a sufficiently rigorous analytical connection between that methodology and the expert’s conclusions.” Nimely, 414 F.3d at 396. “[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” Gen. Elec., 522 U.S. at 146, 118 S.Ct. 512. Accordingly, “expert testimony should be excluded if it is speculative or conjectural,” Boucher, 73 F.3d at 21, or where the proffered opinion is “based on data, a methodology, or studies that are simply inadequate to support the conclusions reached,” Amorgianos, 303 F.3d at 266.

b. Analysis

Colman purports to have used the VCS methodology to reach his opinions about the TP. See Colman Rpt. ¶¶ 15-20; Colman Dep. 61-63. According to Colman, scholars in the VCS field “employ the tools and insights of, inter alia, semiotics/linguisties, aesthetics, anthropology, social history, and law” to “engag[e] with ... ‘visual cultures,’ ” such as the “ ‘culture’ of contemporary luxury consumer goods.” Colman Rpt. ¶ 16. Colman claims to have applied the VCS methodology here by: (1) reviewing Brown’s social media history, press coverage of LVL XIII, and the other “visual and textual material generated by both parties”; and (2) using the insights he has derived from the scholarly literature and his professional and personal experience to (3) determine whether the TP achieved secondary meaning before LVs OTR Sneaker came on the market. See Id. ¶ 20; Colman Dep. 55, 61-64.

This methodology does not come close to withstanding scrutiny under Daubert—it does not satisfy a single one of the Dau-bert factors.

First, and most significant, Col-man’s methodology has not been—and, for multiple reasons, cannot be—tested or challenged in any objective sense. In forming his opinions, Colman claims to have relied primarily on data he retrieved from social media platforms, as well as press coverage he retrieved through Google. See Colman Dep. 55. Critically, however, he did not preserve, much less produce, the vast majority of the materials on which he purportedly relied. LVL XIII claims that Colman reviewed “over 100,000 unsolicited third-party online posts,” PI. Daubert Opp. Br. 7, but Colman—astoundingly—pro-duced copies of only 12 posts. See Sloane Decl., Ex. 41; PI 56.1 ¶ 205.

Worse, it is impossible to reconstruct Colman’s searches. He did not (1) retain a list of the search terms he used, his hit results, or the sites he reviewed but discarded as “duplicative” or “not relevant”; or (2) collect his results in a chart or table. Colman Dep. 55-59. Indeed, Colman conceded that without “go[ing] back into [his] computer,” it would be “[imjpossible to replicate the pool [of documents he relied upon] in the exact manner that [he] did the first time.” Id. at 57; see also id. at 192 (“We know this from quantum physics that there are going to be differences that cannot be avoided, and to the extent that you are talking about replicating precise sort[s] of variables, that is not possible in the world that we live in that is not possible because you can’t travel back in time.”).

This elementary lapse makes it impossible for a court or adversary to test—or a jury to assess—Colman’s methodology, as applied here, for veracity and reliability. See Amorgianos, 303 F.3d at 267 (in assessing the reliability of proposed expert’s analysis, “the district court should undertake a rigorous examination of the facts on which the expert relies”). For this reason alone, exclusion of Colman’s conclusions is mandatory under Daubert.

Second, there is no indication that the VCS methodology has ever been applied to assess secondary meaning—much less subjected to peer review in that context. Colman’s two peer-reviewed publications do not entail any such analysis. See Charles E. Colman, Design and Deviance: Patent as Symbol, Rhetoric as Metric-Part 1, 55 Jurimetrics J. 419-62 (2015); Charles E. Colman, Design and Deviance: Patent as Symbol, Rhetoric as Metric— Part 2, 56 Jurimetrics J. 1-45 (2015).

Third, Colman could not, when prompted at his deposition, identify a known or potential error rate for his methodology. See Colman Dep. 185 (“That is like asking what is the known rate of error in history.”). He countered that “no one has ever, to [his] knowledge, criticized [his] employment of this methodology in visual culture studies or law with regard to very similar subject matter.” Id. 189-90. But given that the Court has not located any prior occasion on which Colman applied this methodology to assess secondary meaning, his statement supplies little reassurance.

Colman has also not identified any standards controlling the application of the VCS methodology. To the contrary, when asked whether VCS offers “one specific methodology so that two people reviewing the information would reach the same conclusion,” Colman answered: “People employ different methodologies in ways that can vary depending upon the project, right? ... [T]he tools that will be best suited to a given situation ... will vary depending on the situation and the sources examined in that situation.” Id. at 179. And, based on his account of his application of the methodology here, Colman did not heed objective standards. He did not, for instance, establish parameters to guide his selection of data (e.g., social media posts). Rather, he simply “reviewed more and more material until [he] felt that [he] had achieved a view ... [as to] consumer perceptions of the metal toe plate.” Id. at 64.

Finally, Colman has not shown that his methodology has been recognized by the courts or gained acceptance within the relevant expert community. He could not identify any expert who has been held qualified to testify in a court proceeding (as to secondary meaning or otherwise) based on the VCS methodology. See id. at 190, 236. On the contrary, he acknowledged that the VCS methodology is at odds with “traditional measures used to determine secondary meaning” and the “completely haphazard methodology sometimes used by federal courts” to determine whether a trademark is inherently distinctive. Colman Rpt. ¶ 19; Colman Dep. 235-36. He also failed to identify any study or scholarly literature in which VCS was applied-to measure secondary meaning.

To be sure, that “testimony is qualitative, rather than quantitative, does not mean that it must be excluded [under Daubert ].” Sunny Merch., 97 F.Supp.3d at 505. As the Court explained in a prior intellectual property case, “ ‘[technical ... or other specialized knowledge,’ may be relevant and reliable, and therefore admissible under Daubert, even if the field of knowledge, be it marketing or plumbing, does not readily lend itself to a formal or quantitative methodology.” Beastie Boys, 983 F.Supp.2d at 365 (quoting Fed. R. Evid. 702). But the Court may not abdicate its gatekeeping function simply because an expert’s methodology does not fit neatly into Daubert’s four-factor test. Use of a qualitative or experience-based methodology does not exempt an expert from Dau-bert scrutiny. See Kumho Tire, 526 U.S. at 151-52, 119 S.Ct. 1167; cf. Hi Ltd., 2004 WL 5486964, at *4 (“[A] vague claim of ‘prior experience’ cannot salvage an opinion ... that is the product of guesswork. Otherwise, proffered expert witnesses could easily circumvent the requirements of Daubert by resorting to ambiguous claims of ‘past experience.’ ”).

Here, as is apparent, the problems with Colman’s methodology go far beyond foregoing a quantitative model: He has failed entirely to show a “sufficiently rigorous analytical connection between [his qualitative] methodology and [his] conclusions.” Nimely, 414 F.3d at 396. Colman testified that he arrived at his conclusions by “reviewing the content of the images [of LVL XIII sneakers posted on social media platforms], the comments that accompany the images, [ ] the number of likes, [and] the dates.” Colman Dep. 62. But he offered no non-conclusory, or remotely clear, explication as to how any of those factors bore on his analysis. Instead, he stated vaguely that “[w]hat was relevant was whether there were retweets, whether there were likes, whether there were comments, and if so, the nature of the retweets, the people retweeting, [and] what people said when they commented on the images.” Id. at 63. Without any explanation how the content of a particular comment or retweet might support or negate a finding of secondary meaning, or how many “likes” or “ret-weets” are necessary to show acquired distinctiveness, the Court is left with no meaningful guidance as to how Colman reached his conclusion. See Fed. R. Evid. 702, Advisory Committee Note (“The trial court’s gatekeeping function requires more than simply ‘taking the expert’s word for it.’ ... The more subjective and controversial the expert’s inquiry, the more likely the testimony should be excluded as unreliable.” (internal quotation marks and citations omitted)).

On this point, Linde v. Arab Bank, PLC, 922 F.Supp.2d 316 (E.D.N.Y.2013), and Koppell, 97 F.Supp.2d 477, supply a revealing contrast. In Linde, plaintiffs expert, Spitzen, described his methodology as “collecting] [ ] information from many sourees[,] ... cross-referencing them, [and] examining] [ ] new information that supported] or contradicted] previous assumptions that ha[d] been made in the course of [his] research.” 922 F.Supp.2d at 322 (internal quotation marks omitted). Unlike Colman, however, Spitzen did not leave the court to speculate how his review of those sources ultimately led to his conclusion. The opposite: Spitzen “describe[d] eighteen criteria, derived from his professional experience, academic studies, and other documents ... that he used when [formulating his opinions].” Id. at 322-23. Admitting Spitzen’s expert testimony, the court noted that Spitzen’s explication of those factors had “ma[de] plain and transparent the considerations he evaluated in reaching his conclusions.” Id. at 323.

The shortcomings of the expert excluded in Koppell provide a closer analogue. There, defendants’ expert, Chapin, purported to base his opinions on his political experience, historical education, and the “methodology of history.” 97 F.Supp.2d at 481. In his report, he explained that, in reaching his conclusions, he “relied on campaign literature, newspapers, conversations with certain undisclosed individuals, and his ‘own memories.’ ” Id. He did not, however, “cite particular facts, pieces of literature, or articles” that shaped his analysis. Id. Nor did he (or defendants) produce the particular articles upon which he relied. Id. Citing these lapses, the court held that Chapin’s report “fail[ed] to meet the threshold for reliability required by Daubert” because it “d[id] not rely upon any discernible methodology.” Id. Rather, it held, the report was “essentially a compendium of Dr; Chapin’s [personal] opinions.” Id. As such, it was “not methodologically sound enough to provide reliable evidence.” Id.

The same outcome is necessary here. Like Chapin, the Koppell expert, Colman has supplied virtually no insight into the considerations that shaped his qualitative analysis. There is thus no basis on which to hold that his opinions derive from a reliable methodology. The Court is left to assume that they are the product of Col-man’s “subjective belief or unsupported speculation.” Daubert, 509 U.S. at 590, 113 S.Ct. 2786. It would be a “dereliction of this Court’s role as a ‘gatekeeper’ to find such [ ] opinion[s] admissible.” Cross Commerce, 2014 WL 11343849, at *8 (citing Williams, 506 F.3d at 160).

In sum, the Court holds that Colman’s report and testimony are inadmissible for at least three independent reasons: first, Colman is not qualified to offer the proffered testimony; second, his opinions are unhelpful and unreliable because they do not “fit” the facts of this case; and third, he did not use a reliable methodology. The Court, therefore, grants LV’s motion to preclude Colman’s report and testimony in its entirety. Accordingly, it will not consider this evidence in resolving the parties’ cross-motions for summary judgment on LVL XIII’s claims.

IY. The Motions for Summary Judgment

A. Applicable Legal Standards

To prevail on a motion for summary judgment, the movant must “show[] that there is no genuine dispute as to any material fact' and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

When the movant has properly supported its motion with evidentiary materials, the opposing party must establish a genuine issue of fact by “citing to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009) (internal quotation marks and citation omitted). “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (internal quotation marks and citation omitted). In determining whether there are genuine issues of material fact, the Court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003)).

“A court faced with cross-motions for summary judgment need not ‘grant judgment as a matter of law for one side or t