Kleen Concepts was accused of infringing Hilsinger 2019s SHIELD mark by using the brand SHIELDME for its screen and lens cleaning products. Hilsinger uses the SHIELD mark for lens cleaning products. Kleen Concepts was also accused of misusing the phrase 201cMade in USA, 201d with Hilsinger contending that 201csignificant components 201d of the products were manufactured abroad. Kleen Concept 2019s motion for summary judgment of non-infringement as to its screen-cleaning products was denied, because the similarity of the marks and the products, combined with disputes of material fact as to the channels of trade and targeted customers, left material facts in dispute. Judge Saylor further struck the portion of Kleen Concept 2019s reply brief that argued for the first time that products that had been re-branded with the (unaccused) mark KLEENME did not infringe, despite the continued existence of the SHIELDME mark on the interior of the packaging, refusing to allow new arguments not raised in the opening brief. Judge Saylor also denied Kleen Concept 2019s motion for summary judgment on the false designation of origin claims, finding that (disputed) facts had been introduced that Hilsinger was actually harmed due to sales losses that coincided with buyer Wal-Mart 2019s initiative to increase sales of domestically-made products and evidence that a Wal-Mart buyer believed Kleen Concepts 2019 products were made in the USA. Finally, Judge Saylor struck the portion of Kleen Concepts 2019 expert report that asked survey respondents to identify their 201cprimary purchasing consideration, 201d because Kleen Concepts could not point to any evidence that the expert 2019s methods for determining this had been tested, subject to peer review, or otherwise scientifically validated.
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