UPPAbaby accuses Sam’s Club of infringing trademarks on UPPAbaby strollers by purchasing UPPAbaby strollers overseas and importing them for sale into America without license or authorization. With trial drawing near, Judge Saylor granted in part UPPAbaby’s motion in limine to exclude portions of a proposed exhibit to be used by a damages expert for Sam’s Club. The proposed exhibit, which is entitled “Calculating Damages in Intellectual Property Disputes,” includes information on accounting measures that can be used to measure the apportionment of incremental profits for damages analyses (e.g., whether to attribute some or all of a defendant’s profits to infringement or to other factors not subject to recovery) as well as portions discussing and analyzing legal standards and the meaning of statutes and common law. Judge Saylor determined that the proposed exhibit would likely qualify as a learned treatise and thus an exception to hearsay. He excluded, however, the substantial portions of the treatise that focused on legal principles governing recovery of net profits and the burden of proof, finding these portions would impermissibly permit the expert to instruct the jury on legal principles.
This case, which is nearing trial, was brought by Craig Smith and Nathan Harris of my firm, Lando & Anastasi.
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