Bern Unlimited, Inc. v. Burton Corp. (95 F. Supp. 3d 184, 2015)

MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

SAYLOR, District Judge.

This is a dispute alleging trade-dress infringement and unfair competition brought by a company that sells sports helmets. Plaintiff Bern Unlimited, Inc., has brought suit against six other makers of sports helmets. Bern contends that its helmets have a unique design, featuring a small visor and rounded shape. It further contends that the distinctive look of its helmets constitutes a protectable trade dress, and that defendants are manufacturing and selling confusingly similar helmets, thereby misleading the public. It seeks relief under both federal and state law.

Defendants Burton Corporation; BRG Sports, Inc. (formally known as EastonBell Sports, Inc.); Smith Sport Optics, Inc.; Vans, Inc.; Amer Sports Winter & Outdoor Co.; and K-2 Corporation have brought counterclaims against Bern, contending that Bern’s marketing of its helmets constitutes ^Jalse advertising in violation of federal and state law. In particular, they contend that Bern falsely advertised the helmet as “patented,” when it knew that the patent was invalid. Defendants seek relief under both federal and state law.

Defendants have moved for summary judgment on the trade-dress and unfair competition claims. Plaintiff has also moved for summary judgment as to the counterclaims for false advertising. Both parties have also filed various motions to strike and exclude evidence. For the following reasons, summary judgment will be granted as to both sets of claims.

I. Background

A. Bern Unlimited, Inc.

Bern Unlimited, Inc., is a manufacturer of helmets for biking, skating, snow, and water sports, based in Duxbury, Massachusetts. (Third Am. Compl. ¶ 11, Docket No. 158; Leedom Decl. ¶ 1, Docket No. 67-1). In January 2006, Bern began selling its Baker line of snow helmets. (Third Am. Compl. ¶ 11).

Bern contends that its helmets feature two distinctly identifiable elements: first, the “rounded profile of the helmet, which is designed to follow the shape of the wearer’s head”; and second, “the distinctive visor.” (Id.).

After the Baker helmet, Bern introduced other lines of helmets incorporating its trade dress. (Third Am. Compl. ¶ 13; Hanewicz Decl. Ex. 1-8). Those lines included the Watts, Lenox and Muse line of helmets for adults, and the Bandito and Bandita youth helmets. (Third Am. Compl. ¶ 13; Hanewicz Decl. Ex. 1, Docket No. 258-1).

B. Defendants

1.Burton

The Burton Corporation is based in Burlington, Vermont. (Third Am. Compl. ¶ 3). In January 2007, Burton introduced its Mutiny helmet as part of its Red brand at the SIA Snow Show. (Cook Decl. ¶ 3, Docket No. 261). In 2008, Burton released a youth model of the Mutiny under the name Defy. (Id. ¶ 4). It released a women’s model named Asylum in 2012. (Id. ¶ 4). In October 2012, the Mutiny, Asylum, and Defy helmets were replaced by the Blitz, Aera, and Scout, respectively. (Id. ¶ 5).

2.BRG Sports

BRG Sports, Inc., formerly Easton-Bell Sports, Inc., is based in Scotts Valley, California. (Third Am. Compl. IT 2; Notice Change Party Name, Docket No. 193). In approximately August 2010, BRG began accepting orders for its Giro Surface helmet. (Carreyn Decl. Ex. 1, Docket No. 272-1). It first shipped the Giro Surface in September 2010. (Id.). BRG started accepting orders for the Giro Surface S, the snow version of the helmet, in approximately November 2010. (Id.). That helmet first shipped in approximately June 2011. (Id.). The following year, BRG introduced the Vault, the youth version of the helmet. (Shapleigh Dep. 157, 162, Docket No. 324).

3.Smith Sports Optics

Smith Sport Optics, Inc. is based in Ketchum, Idaho. (Third Am. Compl. ¶ 4). In January 2012, Smith introduced its Gage helmet at the SIA Snow Show. (Chilson Decl. ¶ 11, Docket Nos. 262, 290). Smith previously introduced its Variant and Hustle helmets with short brims and rounded profiles in January 2007 and January 2008, respectively. (Id. ¶¶ 7, 8).

4.Amer Sports

Amer Sports Winter & Outdoor Company is based in Ogden, Utah. (Third Am. Compl. ¶ 5). Amer Sports began selling a helmet with a brim or visor in 2003 with the Crossmax model. (Key Decl. ¶4, Docket No. 277). In 2007, Amer Sports started marketing the Salomon Patrol and Salomon Poison helmets. (Id. ¶ 5; Key Decl. Ex. 4, Docket No. 277-4). Other models followed. (Key Decl. Ex. 4). Each of the Salomon helmets has a rounded profile and a visor. (Third Am. Compl. ¶¶ 18, 21).

5. K2

K2 Corporation is based in Seattle, Washington. (Third Am. Compl. ¶ 8). In December 2006, K2 introduced its Rant helmet. (Steere Decl. ¶ 14, Docket No. 260). It began selling the Rant helmet to dealers in January 2007. (Id.).

6. Vans

Vans, Inc. is based in Cypress, California. (Third Am. Compl. ¶ 6). Vans sells helmets known as the Pro-Tec Riot and the Pro-Tec Scandal. (Id. ¶¶ 19, 21). It began selling those helmets in January 2011 and August 2012, respectively. (Caffrey Decl. Ex. 73, Docket No. 360).

C. The Bern Trade Dress

1. Marketing of the Bern Helmet

According to Bern, it launched a new line of helmets with the goal of creating a trade dress that would allow consumers to identify those helmets as Bern helmets, whether they had the Bern logo or not. (Bern 30(b)(6) Dep. by Godwin at 44-47, 54, Docket Nos. 254-2, 334-8). The Bern Baker was the first of a line of helmets that had a rounded profile and a distinctive visor. That helmet received great interest when it was first shown at trade shows. (Id. at 480-82). In January 2006, Seth Wescott of the United States won a gold medal in snowboarding at the Winter Olympics wearing a Bern Baker helmet. (Id. at 425). The day after Wescott’s performance, the number of visitors to Bern’s website was approximately 9,800, as compared to an average of 120 per day before. (Id. at 466-67).

From 2006 to 2010, “Bern experienced compounded annual growth of approximately 45 [percent] in total revenues from all products, and approximately 46 [percent] compounded annual growth in revenues from brim-style helmets.” (Pl.’s SMF Opp. Vans’ Mot. Summ. J. ¶ 39, Docket No. 254-1 (citing Floyd Decl. ¶ 2, Docket No. 254-9)). Over that five-year period, Bern’s sales-unit volume grew at a rate of 39 percent annually for all products and 38 percent annually for brim-style helmets. (Id. ¶ 40 (citing Floyd Decl. ¶ 2)). Between its launch and March 2014, Bern has sold 726,826 brim-style helmets in 47 countries worldwide. (Floyd Decl. Ex. A, Docket No. 254-9; Godwin Decl. ¶ 5, Docket No. 254-10). Those sales have produced total revenues of $22 million. (Floyd Decl. Ex. A).

Bern has spent more than $1 million advertising, marketing, and promoting its helmets. (Godwin Decl. ¶ 2, Ex. 1, Docket No. 254-10). Bern has submitted what it refers to as “a representative sample of ... advertisements featuring the Bern Baker and other brimmed Bern helmets.” (Id. ¶ 3, Ex. 2, Docket Nos. 254-10, 254-11). Bern has sponsored at least 50 professional athletes who have worn its helmets at “highly-publicized professional athletic events.” (Pl.’s SMF Opp. Vans’ Mot. Summ. J. ¶ 43 (citing Godwin Decl. ¶ 4, Ex. 3, Docket No. 254-11)). Bern contends that those athletes chose to wear its helmets because of their distinctive style. (Cook Decl. ¶ 2, Docket No. 67-6; Sporastoyl Decl. ¶ 2, Docket No. 67-7). Articles published in the Boston Globe, Entrepreneur, Backpacker, Stuff, Vogue, Wired, Mens Fitness, Powder, Skiing, Trans-World Snowboarding, Gala Style, Fri Flyt, TransWorld Business, Sick-Lines.com, and BikeBiz have profiled Bern’s helmets. (Godwin Deck ¶ 6, Ex. 4). In addition, celebrities have been pictured wearing Bern helmets, other companies have included the helmets in their own promotional materials, and the helmets were featured in the movie Premium Rush. (Godwin Decl. ¶¶ 7-9; Godwin Decl. Ex. 5, Docket No. 254-12; Godwin Decl. Ex. 6, Docket No. 254-12).

2. Customer Declarations

Bern submitted declarations from Christopher Mitchell, David Sadr, Christian Denis, Robert Shaw, and Ryan Montani in opposition to defendants’ motions for summary judgment. Mitchell, Sadr, Denis, Shaw, and Montani are all Bern customers; three are retailers and two are consumers. Bern submitted the declarations in support of its contention that customers have come to associate the distinctive appearance of the brimmed helmets with Bern.

Mitchell is a buyer at Brave New World Surf and Snow, a retailer of surf and snow equipment in Point Pleasant, New Jersey. (Mitchell Decl. ¶ 1, Docket No. 244). In his declaration, he stated that he first heard about Bern helmets in or around 2006, and that he remembers “that the helmet immediately struck [him] as having a new and different appearance. The combination of the brim with the low profile of the helmet was unique in the marketplace.” (Id. ¶ 2). He also stated that he “associated the distinctive appearance of the Bern brim-style helmets with Bern....” (Id. ¶3).

Sadr was a buyer for backcountry.com, an online retailer of outdoor recreational equipment. (Sadr Decl. ¶ 2, Docket No. 246). He stated that he first heard about Bern helmets in 2006. According to Sadr, the “Baker immediately stood out as having a completely different look and style from the other helmets on the market.... Because the look of the Baker was so new and different, [he] associated the low profile, brimmed look of the Baker with Bern....” (Id. ¶¶ 2-4).

Denis owns Elite Feet, a ski and bicycle equipment store with two locations in the Lake Tahoe area. (Denis Decl. ¶ 2, Docket No. 251). He stated that he first heard about Bern helmets in the winter of 2005-06. (Id.). According to Denis, “Bern’s Baker helmet was unique when it was launched because of the low profile of the helmet combined with the short brim.... Because this design was unique, [he] associated the profile of the Bern Baker helmet with Bern.... ” (Id. ¶¶ 3-4).

Shaw stated that he is a consumer who has owned Baker, Watts, and Macon helmets manufactured by Bern. (Shaw Decl. ¶ 1, Docket No. 248). According to Shaw, he first saw Bern’s Baker helmet the ski season when it was launched. (Id. ¶2). He stated that he “had never seen any helmet like the Baker before.... Because of the unique design of the Bern Baker helmet ..., [he] associated the shape of the Baker helmet with Bern.... ” (Id. ¶ 3, 5).

Montani stated that he is a consumer who owns Baker and Macon helmets manufactured by Bern. (Montani Decl. ¶ 1, Docket No. 250). According to Montani, “[w]hen the Bern Baker helmet was launched, its short visor look was unlike any helmet [he] had ever seen.” (Id. ¶ 2). He stated that he “associated the short brim look of the Baker with Bern.... ” (Id. ¶ 3).

Bern has not conducted a survey of consumers, nor has it offered expert testimony on the subject of secondary meaning.

3. Alleged Copying of Bern Trade Dress

As evidence that its trade dress is distinct, Bern contends that each of the defendants looked to Bern’s helmets when designing their own helmets.

a. Burton

Internal documents from Burton’s development of the Red Mutiny helmet make multiple references to Bern. One is a document entitled “Burton’s Product Development Program Charter.” (Suppl. Caffrey Decl. Ex. 29, Docket Nos. 334-2, 334-3). The Product Development Program Charter was a project brief that “outlines information about a particular product that Burton is looking to develop.” (Burton 30(b)(6) Dep. by Cook 37-38, Docket No. 334-8; see Suppl. Caffrey Decl. Ex. 29). In that document, Burton conducted a competitive analysis, where it looked at “[t]he current competitive landscape ... made up of ... Giro, Bern, Protec and Boeri.” (Suppl. Caffrey Decl. Ex. 29). Burton’s stated goal for developing “a new helmet model” was to create a “design signature for the brand” that “will appeal primarily to Riders.” (Id.). The project brief included a picture of the Bern Baker helmet and an analysis of its branding and specifications. (Id.). The analysis of the specifications did not specifically mention the rounded profile or the distinctive visor. (Id.). In addition, the project brief called Bern a “competitive threat.” (Id.; Burton 30(b)(6) Dep. by Cook 46-47). One of the explanations for the strategic rationale behind designing a new helmet was “to keep this competitive threat at bay.” (Suppl. Caffrey Decl. Ex. 29). The project brief included an analysis of strengths, weaknesses, opportunities, and threats for the new helmet. (Id.). One of the identified threats was that “Bern grows more than anticipated and this helmet is seen as an also ran.” (Id.; Burton 30(b)(6) Dep. by Cook 57-58).

In Burton’s phase I review during the development of the Mutiny helmet, it described two of its strategic rationales as follows: “We cannot afford to let Bern move forward” and “[Vans] Protec is also a threat.” (Suppl. Caffrey Decl. Ex. 30, Docket No. 334-4). During the design process, Burton’s designers used a variety of images to guide them. (Id. Ex. 31, Docket No. 334-5). Many helmets were included in those images, including a picture of the Bern Baker helmet. (Id.).

b. BUG

Internal documents from BRG’s development of the Giro Surface contain multiple references to Bern. In. an April 16, 2008 e-mail, BRG’s senior Giro brand manager noted that he has “noticed plenty of messenger types wearing sleek little brimmed helmets in the last year or so.” (Suppl. Caffrey Decl. Ex. 33, Docket No. 334-6). In response, Warren Gravely, BRG’s senior product manager for specialty helmets, wrote, “You mean helmets like the Bern? We are doing a bike version of the Shiv, but we have no plans for a brimmed model. I think Phil is looking into a brimmed helmet, so maybe we can consider that for bike in the future?” (Id.). In an October 23, 2008 e-mail, Gravely wrote of the intention “to design a skate-style hard-shell helmet that includes a fit system ... and a Bern style brim.” (Id. Ex. 34, Docket No. 334-6). BRG employees also created a product brief that summarized the development program for the Giro Surface. (Id. Ex. 35, Docket No. 334-6; Shapleigh Dep. 87, Docket No. 334-8). In the section entitled “styling direction,” the brief stated that the “design of this helmet should be a basic hard-shell, skated-styled shape, but it should add a short brim (see Bern Watts helmet ...) to give it a little attitude.” (Suppl. Caffrey Decl. Ex. 35). In an August 20, 2009 email asking for feedback on the proposed shape for the Giro Surface, Gravely noted that “it tends toward the Bern in ... style.” (Id. Ex. 36, Docket No. 334-6). In response to media inquiries about the difference between the Giro Surface and Bern helmets, Gravely wrote that “to be quite honest, it is a good thing that they are comparing the Surface to the Bern. Bern came into the market a few years ago, and they have been very successful with a niche consumer group because of the unique style offered by the short brim.” (Id. Ex. 37, Docket No. 334-6).

c. Smith

A Smith helmet design brief (which Bern contends is for the Smith Gage helmet) contains references to past Smith helmets and multiple competitor helmets. (Suppl. Caffrey Decl. Ex. 47, Docket No. 334-7). According to the design brief, the goal of the Gage helmet design was to “[c]reate a lifestyle profile to stand out and compete at a saturated, competitive price point. Profile must ‘fit’ into the look of the category, yet stand out as different and appealing.” (Id.). The brief stated that “Design should take into consideration relevant competitor profiles. Specific profiles include: Smith Maze, Smith Vantage, Bern Baker, Red Mutiny, See attached document Profile Design Reference.” (Id.).. The document noted that the Bern Baker helmet has a “modern, clearn [sic] profile.” (Id.). It also stated that Burton’s Red Mutiny helmet had a .“new, modern profile (BERN-like).” (Id.). In a February 22, 2012 e-mail, one of the designers noted that the Gage “helmet, due to its nature, drew primarily from competitive design influence.” (Id. Ex. 48, Docket No. 334-7). The designer also noted that Smith was “not breaking the mold, but [the Gage] gets the job done.” (Id.).

d. Amer Sports

Amer Sports contends that it is “merely” a distributor of the accused Salomon Helmets. (Aicher Decl. ¶ 2, Docket No. 263). It does not design or manufacture helmets. (See id.). As a result, there is no evidence that Amer has copied Bern’s design.

e. K2

In the beginning of the Rant helmet development, K2 designers created a document referred to as a “benchmarking exercise.” (K2 30(b)(6) Dep. by Ambuske 58, Docket No. 3347; see Suppl. Caffrey Decl. Ex. 40, Docket No. 334-6). That document contained images of many different helmets, including the Bern Baker. (Id.). Notes from a product planning meeting that took place three years after the Rant helmet was introduced stated that K2 “[will target Bern with Rant” with respect to Norway. (Id. Ex. 41, Docket No. 334-6).

f. Vans

[ A XXXX-XXXX ] Competitive Analysis by Vans examined helmets by other helmet makers, including BRG, Smith, K2, Boeri, Marker, and Bern. (Caffrey Decl. Ex. 9, Docket No, 254-15). The analysis noted that “Bern is brand new to the helmet market launching their first snow helmet fine for the 06/07 season..... They have a new design model in the line that has a built in visor/ball cap bill to give a new look option to helmets.” (Id.). In an email dated May 10, 2006, a Vans employee suggested that the company had an interest in developing a “visor helmet.” (Id. Ex. 10, Docket No. 254-4). In that e-mail, the employee mentioned that there was “some thought about a baseball type of helmet like Capix or Bern [h]elmet.” (Id.). In its product briefs for the Halo project, Vans referred to and included pictures of a variety of competing helmets, including Bern. (Id. Exs. 11-13, Docket Nos. 254-4, 254-5). The Halo project led to the development of the Pro-Tec Riot helmet. (Bevens Dep. 108, Docket No. 254-5).

4. Simonson Secondary-Meaning Survey

Defendants retained Dr. Itamar Simon-son to conduct a consumer survey on the subject of secondary meaning. (Simonson Rept. ¶¶ 11-14, 16, Docket No. 259-1). In April 2014, he used Target Research Group, a marketing-research company, to conduct a survey of more than 250 prospective helmet purchasers in twelve shopping malls around the country. (Id. ¶¶ 11, 12, 18, 20, 26). “The survey was designed to test if the trade dress or appearance of the Bern Baker helmet has acquired secondary meaning and is associated in the minds of bike, Snow, skate, or water purchasers with a single source (i.e., Bern).” (Id. ¶ 11). The survey used the “double-blind” method, whereby neither the interviewers nor the respondents knew the purpose of the study or its sponsor. (Id. ¶ 17). Potential respondents were screened to determine if they met certain criteria. (Id. ¶ 19). Each survey participant was shown either the Bern Baker helmet or the “control” Bern Brentwood helmet. (Id. ¶¶ 12, 17, 22). Survey participants were then asked whether they associated the appearance of the helmet with any particular company. (Id. ¶¶ 13, 16, 24, Ex. F). If they did, they were asked to identify the company or companies. (Id. ¶¶ 13,16, 24, Ex. F).

As part of the survey, 152 respondents were shown the Bern Baker helmet. None identified Bern as the source of the helmet. (Id. ¶¶ 14, 28, Ex. H). Field Solutions, an independent research firm, conducted a validation survey to confirm that interviews were conducted and interviewees were qualified to participate in the survey. (Id. ¶ 26). “[B]ased on the unambiguous survey results,” Dr. Simonson concluded that the “Bern helmets at issue have not acquired secondary meaning” and that “the alleged distinctive Bern helmets’ trade dress is not famous.” (Id. ¶¶ 14, 29, 30).

D. Evidence as to Counterclaims

As noted, Jonathan Baker designed the' Baker helmet. (Baker Decl. ¶ 3, Docket No. 672). In September 2005, Bern began publicly soliciting sales for the Baker helmet. (Key Decl. Ex. 7, Docket No. 390-7). It first sold the helmet in December 2005. (Id.). Design patent # D572,865S (the “'865 Patent”) for the Baker helmet issued on July 8, 2008, from an application that was filed on January 19, 2007. (Docket No. 1, Ex. A). Jonathan Baker was the named inventor of the patent. (Id.; Baker Decl. ¶¶ 4-7, Docket No. 382).

As noted, the helmet was first sold in December 2005, but the application for a patent was not filed until January 2007. Because of the then-applicable public disclosure bar, 35 U.S.C. § 102(b) (2006), which required patent applications to be filed within one year of such sales, the patent was not likely to withstand a legal challenge.

On February 3, 2011, John Phaneuf, a Bern sales representative and investor, wrote an e-mail to Adam Godwin of Bern that stated the following: “I have had an uneasy feeling since Dennis explained to me that we did not file a patent in time for the Visor shape that we invented. Not sure how this happened but it is probably Bern’s biggest mistake to date.” (Key Decl. Ex. 9, Docket No. 402-8). A January 30, 2011 e-mail from Phaneuf to Bern founder Dennis Leedom asked whether there was “any way to ‘modify’ our shipping records for the Baker to earn the patent?” (Id.).

On April 8, 2014, Jonathan Baker assigned the '865 patent to Bern. (Key Decl. Ex. 1, Docket No. 161-1; Baker Decl. ¶ 7, Docket No. 382). The assignment purported to be retroactive to January 19, 2007. (Id.). On April 11, 2014, Bern filed a statutory disclaimer of the '865 patent with the United States Patent and Trademark Office (“USPTO”) under 35 U.S.C. § 253. (Caffrey Decl. Ex. 1, Docket No. 183). The USPTO accepted the disclaimer on May 13, 2014. (Second Caffrey Decl. Ex. 1, Docket No. 211).

Bern contends that Baker previously assigned his rights in the Baker patent before the application was submitted, but that the signed documents cannot be located. Defendants dispute that contention. However, if Bern did not own the patent at the relevant time, Baker did. Bern had contracted with Baker’s company to do the design work for the helmet. (Baker Decl. ¶ 3, Docket No. 382). Baker had always understood that any intellectual property rights resulting from his design work belonged to Bern. (Id. ¶ 4).

Bern referred to the '865 patent in its marketing materials on multiple occasions. Bern’s 2013/2014 Winter Collection Catalog, 2014 Skate Collection Catalog, 2014 Bike Collection Catalog, and 2014 H20 Collection Catalog all included logos that stated “the original” above text that stated “visor shell patent # US D572,865S.” (Key Decl. Exs. 11, 12, 14, 15, Docket No. 390). The 2013/2014 Winter Collection Catalog also included an actual excerpt from the '865 patent. (Id. Ex. 11). The 2014 Skate Collection Catalog stated that Bern’s “patented integrated cap style visor and hard visor shell shape have been imitated but never replicated. Almost every brand in the market now has a brim, but your customer wants the. original.” (Id. Ex. 12). That catalog also included logos that refer to “The Original Visor Patent # US D,572,865.” (Id. Exs. 12, 13). The 2014 H20 Collection Catalog included the same logos. (Id. Ex. 15). The catalogue also states that Bern’s “patented hard visor shell shape has been imitated but never replicated. Almost every brand in the market now has a brim, but your customer wants the original.” (Id. Ex. 15).

There were also multiple references to the patent on Bern’s website. As of February 25, 2014, the website stated that the “Baker is the original Bern visor lid. (Patent # US D572,865S).” (Id. Ex. 16A). It referred to the Watts helmet as the “successor to Bern’s original visor lid (the Baker-patent #US D572.865 S).” (Id.). Trade-show banners also included the phrase “the original” with the patent number below it. (Id. Ex. 17).

Internal Bern documents indicate its marketing strategies at various points for promoting its brand to distributors. In a document titled “Overview of Bern 2012 Snow Line and Two-Pronged Sales Plan,” Bern described its goals, improvements to its helmets, information about its market share, and the allegation that competitors have “knocked off’ Bern. (Id. Ex. 18). Emails and other internal documents also indicate that Bern’s strategy to promote its brand included informing retailers that Bern was the original and that retailers should avoid stocking knock-off brands. (Id. Exs. 19-23). The same documents indicate that Bern wanted to “provide a formula / incentive to influence retailer to not buy knock off lids (Giro Visor, Red Mutney [sic], Salamon Visor [sic], Protech Visor) but buy the original — Bern.” (Id. Ex. 22; see Exs. 19-21, 23). A Bern representative stated that the company’s “intention was to help educate retailers about our patent and to try to get them to place their buy for visor lids with us and not our competitors.” (Bern 30(b)(6) Dep. by Godwin 398:5-7, Ex. 402-9).

E. Procedural Background

Bern initially brought suit for design-patent infringement against Burton on December 20, 2011. The original complaint alleged that Burton had infringed the '865 patent. On April 27, 2012, Bern filed an amended complaint, adding four defendants and changing its claims from patent infringement to trademark infringement. It dropped its patent-infringement claims entirely.

On September 28, 2012, defendants moved for summary judgment on the ground that Bern could not prevail because it could not prove the non-functionality of its asserted trade dress. The Court denied that motion on May 15, 2013.

On July 11, 2013, after obtaining leave of court, Bern filed a second amended complaint adding two defendants. The second amended complaint alleged trade-dress infringement under 15 U.S.C. § 1125(a) and Massachusetts common law; trade-dress dilution under 15 U.S.C. § 1125(c) and Mass. Gen. Laws ch. 110H, § 13; and unfair competition under Mass. Gen. Laws ch. 93A. The second amended complaint did not allege any claims of patent-law violations.

On March 7, 2014, again after obtaining leave of court, Bern filed a- third amended complaint adding additional allegedly infringing helmets introduced by defendants after the inception of the ease.

On March 24, 2014, defendants filed answers to the third amended complaint. For the first time, defendants asserted counterclaims with their answers. With one partial exception, the counterclaims brought claims for (1) a declaratory judgment that the '865 patent is invalid, (2) a declaratory judgment that Bern cannot enforce the '865 patent because of its inequitable conduct, (3) false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a), (4) common-law unfair competition, and (5) unfair and deceptive trade practices in violation of Mass. Gen. Laws ch. 93A.

On April 14, 2014, Bern filed a motion to strike the counterclaims (or, in the alternative, to sever them) on the grounds that (1) defendants were required to seek leave of Court to amend their answers to add new counterclaims; (2) the declaratory-judgment claims are moot because Bern disclaimed the '865 patent; and (3) the false advertising, unfair competition, and Chapter 93A counterclaims fail to state a claim upon which relief can be granted. On June 12, 2014, the Court granted the motion to strike as to certain counterclaims (the declaratory judgment act counterclaims and the Lanham Act, common-law unfair competition, and Chapter 93A counterclaims that were based on allegations of puffery), and otherwise denied the motion.

On June 3, 2014, Vans moved for summary judgment on the grounds that Bern’s trade dress does not have secondary meaning, and in any event, no reasonable juror could find a substantial likelihood of confusion between the accused Pro-Tec helmet and Bern’s helmet.

On July 28, 2014, Burton, BRG, Amer Sports, K-2, and Smith moved for summary judgment on the grounds that Bern cannot prove (1) that its trade dress has acquired secondary meaning and (2) that its trade dress is non-functional. On the same day, Burton, BRG, Amer Sports, K-2, and Smith each filed separate motions for summary judgment on the issue of likelihood of confusion. They also moved to strike and exclude the expert opinion of David Rogers on the subject of functionality. The next day, Vans filed a notice that it was joining defendants’ combined motion for summary judgment on the issues of secondary meaning and functionality.

On July 29, 2014, Vans filed a motion to strike five declarations that Bern submitted in opposition to its motion for summary judgment as untimely. On that same day, the other five defendants moved to join the motion to strike.

On September 5, 2014, Bern moved to strike the expert reports of Dr. Simonson on the issues of secondary meaning and likelihood of confusion, and otherwise to exclude his opinions and testimony.

On December 22, 2014, Bern moved for summary judgment on defendants’ counterclaims on the grounds that (1) defendants have not produced evidence of materiality and (2) they have not provided evidence of causation or damages.

II. Motions To Strike and Exclude

As a general matter, only evidence that would be admissible at trial may be considered in connection with a motion for summary judgment. See Garside v. Osco Drug, Inc., 895 F.2d 46, 49-51 (1st Cir.1990). Under Fed.R.Civ.P. 56(c)(4), affidavits, although not themselves admissible at trial, may be offered in support of (or opposition to) summary judgment if they set forth facts that would be admissible under the Federal Rules of Evidence. Garside, 895 F.2d at 49-51. A motion to strike is the proper vehicle for challenging the admissibility of evidence offered at the summary judgment stage. See Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668, 682 (1st Cir.1994).

A. Declarations Submitted by Bern

Defendants have moved to strike' and exclude the declarations of five witnesses (Mitchell, Sadr, Denis, Shaw, and Montani) on the ground that Bern failed to identify those individuals as witnesses in accordance with the discovery rules.

Fact discovery in this case took place between July 2012 and March 28, 2014. It is undisputed that in its initial disclosures, Bern did not list any of the five declarants as persons having discoverable information. (Stier Second Decl. Ex. A 1-2, Docket No. 297). It is also undisputed that Bern never supplemented its initial disclosures to identify the five witnesses. Bern acknowledges that it identified the witnesses for the first time on July 15, 2014, in its opposition to the motion of defendant Vans for summary judgment.

It does not appear to be disputed that the five individuals are significant witnesses, at least in this specific respect: Bern is relying on the declarations of those witnesses to defeat summary judgment.

Under Rule 26(e), a party must supplement or correct a disclosure made under Rule 26(a) “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e). Rule 37(c)(1) provides that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion ... unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Rule 37 contemplates strict adherence to the discovery requirements; furthermore, “the required sanction in the ordinary case is mandatory preclusion” of the untimely disclosed information. Klonoski v. Mahlab, 156 F.3d 255, 269 (1st Cir.1998). However, Rule 37(c)(1) contains a “narrow escape hatch” that allows courts to admit untimely evidence if the proponent’s failure to reveal it was either substantially justified or harmless. Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 60 (1st Cir.2001). The non-disclosing party carries the burden of proving substantial justification or harmlessness. Alves v. Mazda Motor of America, Inc., 448 F.Supp.2d 285, 293 (D.Mass.2006).

Bern contends that it timely disclosed the five declarants when it first determined the need to call them at trial. It contends that such a need arose in response to the argument made by Vans in its motion for summary judgment that Bern’s trade dress has not acquired secondary meaning. Although Bern acknowledges that Vans had previously asserted an affirmative defense stating that the trade dress was “not distinctive,” it contends that the motion for summary judgment is “notably more specific.” (Pl. Bern’s Opp. Mot. Strike 1, Docket No. 305).

Bern; however, has it backwards. Defendants do not need, and have never needed, to prove that Bern’s trade dress was not distinctive. Instead, Bern must prove its trade dress was distinctive because it acquired secondary meaning. See Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 38 (1st Cir.2001). More particularly, because Bern’s trade-dress claims are based on “product design/configuration,” its trade dress is distinctive only if it “has acquired distinctiveness” by developing “secondary meaning.” Wal-Mart Stores v. Samara Bros., Inc. 529 U.S. 205, 210-15, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000); Yankee Candle, 259 F.3d at 40. And the plaintiff has the burden of proof as to secondary meaning. See Yankee Candle Co., 259 F.3d at 40-41, 43-45. It is certainly true that this issue has arisen in a sontewhat unique context. The witnesses in question are not percipient .witnesses in the normal sense — there is no discrete event or activity that they perceived — nor are they expert witnesses. In theory, at least, anyone who ever saw or used a Bern helmet was a potential witness. But neither are those witnesses insignificant. Bern has had the burden of proving secondary meaning from the outset, and it has chosen not to rely on survey evidence. That means that Bern elected to rely on the evidence of testifying witnesses. It selected those five witnesses, and those witnesses alone, to give sworn statements in an effort to defeat summary judgment.

Accordingly, Bern has not established either that the identification of the witnesses was timely or that the late identification was justified. In determining whether that failure was harmless, the Court must balance “a multiplicity of pertinent factors, including the history of the litigation, the proponent’s need for the challenged evidence, the justification (if any) for the late disclosure, and the opponent’s ability to overcome its adverse effects.” Gagnon v. Teledyne Princeton, Inc., 437 F.3d 188, 191 (1st Cir.2006) (quoting Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir.2003)). The element of surprise should also be considered. Id. Those factors do not weigh in Bern’s favor.

First, discovery closed on. March ,28, 2014. Bern submitted the declarations for the first time on July 15, 2014, more than three months after the close of discovery.

Second, although the evidence represents Bern’s only direct evidence of secondary meaning, the potential need for such evidence was entirely predictable. As noted, Bern has always had the burden to prove secondary meaning. If Bern was not going to prove secondary meaning through survey evidence, it should have foreseen that witness testimony would be required.

Third, the weight of the witnesses’ evidence is limited. Of the five witnesses, three are retailers. Evidence that a retailer views the trade dress as distinctive is not probative of secondary meaning. Yankee Candle, 259 F.3d at 43 n. 14. Even if the two remaining declarations were admissible, they do not demonstrate “that a significant portion of the consuming public connects [the mark] exclusively with [Bern], which is the critical inquiry.” ’ See Unleashed Doggie Day Care, LLC v. Petco Animal Supplies Stores, Inc., 2011 WL 6812642, *7 (D.Mass. Dec. 28, 2011). The evidence of two seemingly random (or, perhaps, not random) customers, without more, is very weak direct evidence. Indeed, Bern barely relies on the challenged declarations in its briefing.

Fourth, as previously explained, Bern’s proffered justification for the late disclosure was unsatisfactory.

Fifth, defendants’ ability to overcome the adverse effects of the declarations is limited at best. Defendants did not receive the declarations until more than three months after discovery had been closed. This case is more than three years old. Among other things, defendants have lost the opportunity to depose the witnesses, and to explore exactly how it was Bern came to select them as witnesses, and the factual basis of their statements. Bern contends that Vans conceded that it has not been materially prejudiced by the submission of these declarations because the new declarations only make up a small portion of its evidence. But whether the declarations are a small portion of the evidence or not, without a satisfactory justification for Bern, any prejudice to defendants is too much.

Bern also contends that defendants cannot complain about prejudice because Bern “is not the only party to submit new declarations of fact witnesses after the close of discovery in connection with summary judgment motions.” (Pl. Bern’s Opp. Mot. Strike at 2). To support that contention, Bern points to defendants’ submission of “six new declarations of fact witnesses with their summary judgment motions, well - after the close of discovery.” (Id. at 4). However, the fact that defendants also may have submitted untimely declarations does not absolve Bern of its own untimeliness. Rather, if Bern believes that defendants’ declarations are untimely, it could have filed its own motion to strike.

In short, the disclosure of the witness was not timely, not substantially justified, and not harmless. Accordingly, defendants’ motion to strike and exclude the declarations and testimony of Mitchell, Sadr, Denis, Shaw, and Montani will be granted.

B. Expert Testimony

The admissibility of expert testimony is governed principally by Rule 702 of the Federal Rules of Evidence. The adoption of Rule 702 in its present form codified the standard of admissibility for expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). United States v. Diaz, 300 F.3d 66, 73 (1st Cir.2002).

Under Rule 702, district courts considering the admissibility of scientific testimony must “act as gatekeepers, ensuring that an expert’s proffered testimony ‘both rests on a reliable foundation and is relevant to the task at hand.’ ” Samaan v. St. Joseph Hosp., 670 F.3d 21, 31 (1st Cir.2012) (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786). That gatekeeping function requires that the Court consider three issues: (1) whether the proposed expert is qualified by “knowledge, skill, experience, training or education;” (2) whether the proposed subject matter of the expert opinion properly concerns “scientific, technical or other specialized knowledge;” and (3) “whether the testimony is helpful to the trier of fact, i.e., whether it rests on a reliable foundation and is relevant to the facts of the case.” Bogosian v. Mercedes-Benz of N. Am., Inc., 104 F.3d 472, 476 (1st Cir.1997). The motions at issue in this case all relate to the third issue: the reliability, of the experts’ proffered testimony.

The requirement that an expert’s testimony must be based on a reliable scientific foundation is often the “central focus of a Daubert inquiry.” RuizTroche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 81 (1st Cir.1998). That requirement ensures that “the reasoning or methodology underlying the testimony is scientifically valid and ... that [the] reasoning or methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786. In other words, Rule 702 requires the court to “ensure that there is an adequate fit between the expert’s methods and his conclusions.” Samaan, 670 F.3d at 32 (citing Daubert, 509 U.S. at 591, 113 S.Ct. 2786). Significant analytical gaps between the data and the opinion proffered by an expert may undermine the reliability of an expert’s testimony. See General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). A court may choose to exclude an expert’s opinion when it is “based on conjecture or speculation from an insufficient evidentiary foundation,” Damon v. Sun Co., 87 F.3d 1467, 1474 (1st Cir.1996) (internal quotation marks omitted), or when it is “connected to existing data only by the ipse dixit of the expert.” General Elec. Co., 522 U.S. at 146, 118 S.Ct. 512.

The focus of the Rule 702 inquiry is on the principles and methodology employed by the expert, not the ultimate conclusions. Daubert, 509 U.S. at 595, 113 S.Ct. 2786. The court may not subvert the role of the fact-finder in assessing credibility or in weighing conflicting expert opinions. Rather, “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Id. at 596, 113 S.Ct. 2786; see also Ruiz-Troche, 161 F.3d at 85 (admitting testimony notwithstanding a lack of peer-reviewed publications because the opinion rested upon good grounds generally and should be tested by the “adversary process”).

1. Defendants’ Motion to Exclude Rogers Opinion

Plaintiff has offered David Rogers as an expert in the field of helmet design to provide an opinion as to whether the Bern trade dress provides a function to the wearer. (Rogers Rept. 112, Docket No. 258-8). Defendants moved to strike and exclude his expert opinion on the grounds that (1) his report “primarily focuses on an irrelevant functionality analysis relating to regulatory compliance; and (2) all remaining conclusions are entirely unsupported by any facts, data, testing, analysis, or repeatable protocols.” (Defs.’ Br. Support Mot. Strike Rogers 4, Docket No. 267). Because the Court will not reach the issue of functionality, it does not need to resolve whether the report should be excluded. Accordingly, the motion to exclude will be denied as moot.

2. Plaintiff’s Motion to Exclude Simonson Reports

Bern has moved to exclude Dr. Simon-son’s report on the subject of secondary meaning and his rebuttal report on likelihood of confusion.

a. Survey on Secondary Meaning

Secondary meaning must be established at the time of infringement. Commerce Nat’l Ins. Serv., Inc. v. Commerce Ins. Agency, 214 F.3d 432, 438-40 (3d Cir.2000). Bern contends that Simon-son’s expert report on secondary meaning is irrelevant because it was taken in 2014, and not at the time of first infringement. Defendants concede that Bern must prove secondary meaning “as of the time any [defendant first began selling the accused helmets,” but defendants contend “that proposition does not render the survey inadmissible.” (Defs.’ Opp. Mot. Strike Simonson 1-2, Docket No. 343).

It is clearly established that survey evidence is the “preferred” manner of demonstrating secondary meaning. Yankee Candle, 259 F.3d at 39. Along with testimony by individual consumers, customer surveys are the only direct evidence probative of secondary meaning. Id. at 43. Under Bern’s theory, a company would have to undertake a preemptive survey prior to the time they allegedly first infringe, or the survey evidence would not be admissible. Such a requirement would be absurd, and would make it nearly impossible for defendants ever to present the “preferred” form of evidence.

Thus, courts have routinely admitted such evidence and examined the timing to determine the strength of the evidence. See General Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405, 419 (6th Cir.2006); I.P. Lund Trading ApS v. Kohler Co., 118 F.Supp.2d 92, 106 (D.Mass.2000). In General Motors, the Sixth Circuit determined that a “court may easily take into consideration the strength of recognition at the time of the survey in light of the amount of time passed between that date and the date of infringement.” 468 F.3d at 419. In that case, the court found that plaintiffs consumer surveys conducted in 1999 and 2002 provided “strong statistical evidence” to support secondary meaning in 1992. Id. The court held that in light of that “strong survey evidence ... [,] summary judgment was appropriate as to the issue of secondary meaning.” Id. at 420. Likewise, in I.P. Lund, the court allowed three consumer surveys from 1999 as evidence of secondary meaning as of 1996. 118 F.Supp.2d at 106.

Bern cites the Third Circuit’s decision in Commerce National Insurance, 214 F.3d at 440, in support of its contention that the survey is irrelevant. The court in that case found that a then-recent customer satisfaction survey was “wholly irrelevant” as to whether the plaintiff had achieved secondary meaning as of the date of infringement. Id. Although the court found that the recency of the survey made it “not particularly probative of customer views” as of the relevant date, it “more importantly” found the survey irrelevant because it was a customer satisfaction survey that did “little to demonstrate” secondary meaning. Id. To the extent that the court found the survey irrelevant based on its timing, it appears to be against the weight of authority and wrongly decided. To the extent that it involved a different type of survey, it is irrelevant. Commerce National Insurance therefore does not support Bern’s contention that defendants’ survey is irrelevant. Bern has pointed to no authority where a secondary-meaning survey was excluded solely on the basis of its timing.

Because of the important evidentiary role that consumer surveys play in determining secondary meaning, and the impracticality of requiring that consumer surveys be conducted before the alleged infringement occurs, Dr. Simonson’s survey will not be excluded. The time between alleged infringement and his survey will be taken into account when determining the strength of the evidence.

Accordingly, Dr. Simonson’s report on the subject of secondary meaning will not be excluded.

b. Survey on Consumer Confusion

Plaintiff next contends that Simonson’s rebuttal survey on likelihood of confusion should be excluded because he used an improper choice of interview methodology, improper pre-stimulation array, incorrect universe of respondents, unrealistic testing conditions, improper question wording, small sample size, and improper data collection procedures. In support of its motion to exclude the rebuttal survey, plaintiff submitted a declaration from its expert Robert Klein. Because the Court will not reach the issue of likelihood of confusion, it does not need to resolve whether the Simonson rebuttal should be excluded. Accordingly, the motion to exclude will be denied as moot.

III. Legal Standard for Summary Judgment

The role of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (internal quotation marks omitted). Summary judgment is appropriate when the moving party shows 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). “Essentially, Rule 56[ ] mandates the entry of summary judgment ‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’ ” Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir.1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In making that determination, the court must view “the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Sta ples, Inc., 556 F.3d 20, 25 (1st Cir.2009). When “a properly supported motion for summary judgment is made, the adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (footnotes omitted). The nonmoving party may not simply “rest upon mere allegation or denials of his pleading,” but instead must “present affirmative evidence.” Id. at 256-57, 106 S.Ct. 2505.

IV. Defendants’ Motion for Summary Judgment

Plaintiff has brought both federal and state trade-dress claims. The federal claims are brought pursuant to the Lanham Act, which provides protection against “trade dress” infringement and dilution. 15 U.S.C. § 1125(a), (c).

As a general matter, trade-dress claims are difficult to establish. In substance, and as set forth below, the plaintiff must establish that the design and appearance of its products identify those products as coming from a particular source. It is not enough to show that competitors, in response to the success of plaintiffs particular design, began marketing products that were similar. In a product-design case, the plaintiff must prove that the design has acquired “secondary meaning” — in other words, that a significant portion of the consuming public connects the product design with the source of the product (that is, the plaintiff). Unless that secondary meaning is proved, the plaintiff company does not have an actionable claim against its competitors, even if their designs were clearly efforts to mimic or follow the style set by the plaintiff.

A. Trade-Dress Claims

“Trade dress” is defined as “the design and appearance of a product together with the elements making up the overall image that serves to identify the product presented to the consumer.” Yankee Candle, 259 F.3d at 37-38 (quoting Chrysler Corp. v. Silva, 118 F.3d 56, 58 (1st Cir.1997)) (internal quotation marks omitted). Trade-dress' protection is intended “to protect that which identifies a product’s source.” Id. at 38 (citing I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 35 (1st Cir.1998)). Plaintiffs can bring trade-dress claims “based both on product packaging and on ‘product design/configuration.’ ” Id. (citing Wal-Mart Stores v. Samara Bros., Inc., 529 U.S. 205, 213-14, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000)).

In order to prevail on a claim of trade-dress infringement, a plaintiff must prove that the trade dress is (1) distinctive and (2) non-functional, and (3) that “another’s use of a similar trade dress is likely to cause confusion among consumers as to the product’s source.” Id. (citing I.P. Lund, 163 F.3d at 36, 43-44).

1. Whether the Trade Dress Is Distinctive

A trade dress is distinctive if it is either (1) “inherently distinctive” or (2) “has acquired distinctiveness” by developing “secondary meaning.” Wal-Mart, 529 U.S. at 210-11, 120 S.Ct. 1339; see also Yankee Candle, 259 F.3d at 38. It is inherently distinctive when the “intrinsic nature [of the trade dress] serves to identify a particular source.” Yankee Candle, 259 F.3d at 38 (alterations in original) (quoting Wal-Mart, 529 U.S. at 210, 120 S.Ct. 1339). It has developed “secondary meaning” when “in the minds of the public, the primary significance of [it] is to identify the source of the product rather than the product itself.” Wal-Mart, 529 U.S. at 211, 120 S.Ct. 1339 (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851 n. 11, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)) (internal quotation marks omitted).

It is undisputed that Bern’s trade-dress claims are based on “product design/configuration.” The Supreme Court has held that a product design may never be inherently distinctive because “even the most unusual of product designs ... is intended not to identify the source, but to render the product itself more useful or more appealing.” Wal-Mart, 529 U.S. at 212-14, 120 S.Ct. 1339; see also Yankee Candle, 259 F.3d at 40. Bern’s trade-dress therefore is distinctive only if it had developed secondary meaning at the time of the first alleged infringement, which happened in early 2007. See Yankee Candle, 259 F.3d at 40 (citing Wal-Mart, 529 U.S. at 215, 120 S.Ct. 1339); Commerce National Insurance, 214 F.3d at 438-40.

The issue here is whether Bern “has introduced sufficient evidence to survive summary judgment on the question of secondary meaning.” Yankee Candle, 259 F.3d at 43. It is well-established that “[p]roof of secondary meaning entails vigorous evidentiary requirements.” Id. (alterations in original) (quoting Boston Beer Co. v. Slesar Bros. Brewing Co., 9 F.3d 175, 181 (1st Cir.1993)).

a. Direct Evidence of Secondary Meaning

Consumer surveys and testimony by individual consumers are the only types of direct evidence probative of secondary meaning. Yankee Candle, 259 F.3d at 43. Bern has no direct evidence of secondary meaning. It has introduced no survey evidence, and has no admissible evidence that individual consumers associate the particular features at issue with Bern.

The Court has excluded the five declarations submitted by Bern in support of its opposition to the motions for summary judgment. However, even if the Court were to consider those declarations as evidence, three of them are by retailers. As noted, evidence that a retailer views the trade dress as distinctive is not probative of secondary meaning. Yankee Candle, 259 F.3d at 43 n. 14. And even if the two remaining declarations were considered, they do not demonstrate “that a significant portion of the consuming public connects [the design] exclusively with [Bern], which is the critical inquiry.” See Unleashed Doggie Day Care, 2011 WL 6812642, at *7. The size of the helmet market is unclear from the record, but surely two individuals represent only a tiny fraction of that market, and there is nothing in the record to suggest that those two are in some way representative of the market as a whole.

Bern contends that statements by professional athletes Parker Cook and Tarjei Sporastoyl constitute direct evidence of secondary meaning. Those declarations contain the following identical language: “I have chosen to wear Bern’s helmets because of their distinctive style, which is created by the profile of the helmet and the narrow visor or brim.” (Cook Decl. ¶ 2, Docket No. 67-6; Sporastoyl Decl. ¶ 2, Docket No. 67-7). While those declarations indicate that the two athletes believed that the helmets had a distinctive style, they say nothing about connecting that style to the source of the product. See Wal-Mart, 529 U.S. at 212-14, 120 S.Ct. 1339. The declarations therefore do not provide evidence of secondary meaning.

Furthermore, the declarations are dated 2012, and do not indicate when the declarants began wearing Bern helmets. Bern must prove that its product has acquired secondary meaning before defendants began using the same or similar products. Commerce National Insurance, 214 F.3d at 438-40. As noted, defendants began selling the first of their accused products in 2007. Even if timely, the identical comments of two professional athletes simply do not demonstrate “that a significant portion of the consuming public connects [the mark] exclusively with [Bern], which is the critical inquiry.” See Unleashed Doggie Day Care, 2011 WL 6812642, at *7.

In contrast, defendants have submitted Dr. Simonson’s survey, in which zero out of 152 respondents identified Bern as the source of a Baker helmet. (Simonson Rept. ¶¶ 14, 28, Ex. H). Based on those results, Simonson concluded that Bern’s alleged trade dress has not acquired secondary meaning. (Id. ¶¶ 14, 29, 30). Although Dr. Simonson’s survey is from 2014, and not before infringement occurred, it is still probative as to whether the “primary significance of [Bern’s helmets] is to identify the source of the product rather than the product itself.” Wal-Mart, 529 U.S. at 211, 120 S.Ct. 1339. Again, it would be absurd to require defendants to conduct surveys as to secondary meaning prior to being accused of infringement.

b. Circumstantial Evidence of Secondary Meaning

The absence of direct evidence is not necessarily fatal to Bern’s case. Bern can also prove secondary meaning through circumstantial evidence. Yankee Candle, 259 F.3d at 43. Among the factors courts generally look to as circumstantial evidence in determining whether a term has acquired secondary meaning are

[1] the length and manner of the use of the trade dress, [2] the nature and extent of advertising and promotion of the trade dress, ... [3] the efforts made to promote a conscious connection by the public between the trade dress and the product’s source[,] ... [4] the product’s ‘established place in the market’ and [5] proof of intentional copying.

Id. at 43-44.

(1) Length and Manner of the Use of the Trade Dress

The first factor is the length and the manner of the use of the trade dress. The longer the period of exclusivity, the stronger the evidence that a product has acquired secondary meaning. See Santander Consumer USA Inc. v. Walsh, 762 F.Supp.2d 217, 231 (D.Mass.2010); I.P. Lund, 118 F.Supp.2d at 111 (explaining that evidence of long and exclusive use provides evidence in favor of secondary meaning); see also 165 Park Row, Inc. v. JHR Development, LLC, 967 F.Supp.2d 405, 413 (D.Me.2013).

Bern began selling the Baker helmet between December 2005 and January 2006. By January 2007, K2 had begun selling its Rant helmet to dealers, and Burton had introduced its Mutiny Red helmet at a trade show. By the end of 2007, both K2 and Amer Sports had begun selling their alleged infringing helmets to consumers. As a result, Bern’s product was on the market for barely more than a year by the time competitors were selling allegedly infringing products. If the Bern trade dress did in fact acquire a secondary meaning, it had to do so in a very short period of time. Therefore, that factor does not weigh in Bern’s favor.

(2) Advertising, Marketing, Product Success

The second, third, and fourth factors are “the nature and extent of the advertising and promotion of the trade dress,” “the efforts made to promote a conscious connection by the public between the trade dress and the product’s source,” and “the product’s established place in the market.” Those factors will be analyzed together.

Bern contends that it has spent more than $1 million on advertising, marketing, and promoting its helmets. However, that number describes the amount spent between January 2005 and December 2012. As noted, Bern must prove secondary meaning by the time of the first alleged infringement in 2007. Bern spent $10,397 in 2005, $24,532 in 2006, $96,369 in 2007, $147,558 in 2008, $139,945 in 2009, $213,636 in 2010, $237,585 in 2011, and $227,064 in 2012. Therefore, of the $1.1 million spent on marketing, no more than twelve percent of that amount — about $131,000 — had been spent prior to the introduction of the first infringing products. The numbers do not capture what percentage of the marketing went to promoting helmets that embodied Bern’s trade dress, or what percentage occurred after Burton and K2 had come out with competing helmets in January 2007.

Bern further contends that its advertising has focused on the distinctive profile of its helmets. Dates are missing from many of the advertisements submitted by Bern, although it is true that the advertisements include pictures of the helmet. (See Godwin Decl. Ex. 2). The type of advertising that is relevant is “advertising that specifically directs a consumer’s attention to a particular aspect of the product____Merely ‘featuring’ the relevant aspect of the product in advertising is no more probative of secondary meaning than are strong sales.” Yankee Candle, 259 F.3d at 44. The advertising submitted by Bern does not call attention to the short brim or the rounded shape. Of the 32 pages of advertisements featured in Exhibit 2 to- Godwin’s declaration, it is not obviously apparent that any one of them specifically mentions the Bern trade dress or “directs consumer’s