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IP damages experts dodge exclusion in trademark case

In a trademark infringement case in Florida, the plaintiff’s expert (an economist) was to testify as to corrective advertising damages, but the defendant made a motion that she be excluded.

Therapeutics MD, Inc. v. Evofem Biosciences, Inc.

In this trademark infringement case before a U.S. magistrate judge, the magistrate recommended to the District Court whether certain experts should be allowed to testify. The recommendations were for granting or denying motions of both parties to exclude testimony of the other party’s experts. The magistrate reviewed not only the qualifications of each of the experts, but also the subject of their testimony and opinions and whether they are appropriate and helpful to the court in resolving the issues. In the end, the magistrate recommended to deny the plaintiff’s motion to exclude the defendant’s experts and the defendant’s motion to exclude the plaintiff’s experts be granted in part and denied in part.

In Trademark Infringement Case, Parties Cross-Motions to Exclude Consumer Survey Experts

In this trademark infringement case before a U.S. magistrate judge, the magistrate recommended to the District Court whether certain experts should be allowed to testify. The recommendations were for granting or denying motions of both parties to exclude testimony of the other party’s experts. The magistrate reviewed not only the qualifications of each of the experts, but also the subject of their testimony and opinions and whether they are appropriate and helpful to the court in resolving the issues. In the end, the magistrate recommended to deny the plaintiff’s motion to exclude the defendant’s experts and the defendant’s motion to exclude the plaintiff’s experts be granted in part and denied in part.

Xodus Med. v. Prime Med. (I)

This was a patent infringement case related to technology "related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam." Justin Blok was the defendants’ damages expert. The plaintiffs sought to exclude Blok’s testimony on the reasonable royalty because they contended he used unreliable and irrelevant documents to support his opinion. The defendants argued, and the court agreed, that Blok’s opinions go to the weight and not to the admissibility of his opinions.

Court Denies Plaintiffs’ Motion to Exclude Expert Testimony—The Subject of the Testimony Goes to the Weight and Not the Admissibility

This was a patent infringement case related to technology "related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam." Justin Blok was the defendants’ damages expert. The plaintiffs sought to exclude Blok’s testimony on the reasonable royalty because they contended he used unreliable and irrelevant documents to support his opinion. The defendants argued, and the court agreed, that Blok’s opinions go to the weight and not to the admissibility of his opinions.

BVU News and Trends March 2021

A monthly roundup of key developments of interest to business valuation experts.

Monetary Remedies in Trademark Infringement Litigation

Remedies in the Lanham Act are used to punish wrongdoers in trademark infringement litigation, but courts applying that law have dealt differently with some key issues, especially monetary remedies. This article outlines some such problems and how the courts have dealt with them.

Fingertip guides to valuation cases in new BVR compendium guides

BVR’s valuation and case law compendium guides contain a very helpful feature: a handy summary table of hundreds of cases (by jurisdiction) that gives you the case name, date, specific court, and the main valuation issue in the case.

Revised resource for IP valuation insights and case law

New chapters and over 200 case digests—plus online access to the full text opinions—are available in BVR’s Intellectual Property Valuation Case Law Compendium, 4th edition.

Coca-Cola Co. v. Comm'r

Coca-Cola had been applying a transfer pricing method called the 10-50-50 since it entered into a closing agreement with the IRS in 198, covering the years 1987 to 1995. Coca-Cola had consistently followed that transfer pricing method; the IRS had audited Coca-Cola annually and “signed off” on that transfer pricing method for over a decade. Upon examination of Coca-Cola’s tax returns for 2007 to 2009, the IRS determined that Coca-Cola’s transfer pricing methodology did not reflect arm’s-length norms because it overcompensated the supply point and undercompensated Coca-Cola. The IRS reallocated income between Coca-Cola and its supply points employing the comparable profits method (CPM) pursuant to Reg. Sec. 1.482-5. The IRS increased Coca-Cola’s taxable income by over $9 billion assessing over $3 billion in additional taxes!

2020’s Most Important Transfer Pricing Case—Coca-Cola

Coca-Cola had been applying a transfer pricing method called the 10-50-50 since it entered into a closing agreement with the IRS in 1986, covering the years 1987 to 1995. Coca-Cola had consistently followed that transfer pricing method; the IRS had audited Coca-Cola annually and “signed off” on that transfer pricing method for over a decade. Upon examination of Coca-Cola’s tax returns for 2007 to 2009, the IRS determined that Coca-Cola’s transfer pricing methodology did not reflect arm’s-length norms because it overcompensated the supply point and undercompensated Coca-Cola. The IRS reallocated income between Coca-Cola and its supply points employing the comparable profits method (CPM) pursuant to Reg. Sec. 1.482-5. The IRS increased Coca-Cola’s taxable income by over $9 billion assessing over $3 billion in additional taxes!

Journal of Business Valuation 2015 Edition

From the CBV Institute ...

Supreme Court reviews damages issue in trademark infringement case

The U.S. Supreme Court is about to hear arguments in a trademark infringement case that turns on whether the plaintiff, in order to obtain the infringer’s profits, has to show willful infringement by the defendant.

Expert’s Valuation of Pork Trademarks Fails to Account for IP’s Limited Use

Court rejects USDA’s decision to keep paying for pork-promoting trademarks that mostly have become functionally obsolescent and replaced by a different slogan; expert’s replacement cost approach to find current value of trademarks is illogical, says court.

Humane Soc’y of the United States v. Perdue

Court rejects USDA’s decision to keep paying for pork-promoting trademarks that mostly have become functionally obsolescent and replaced by a different slogan; expert’s replacement cost approach to find current value of trademarks is illogical, says court.

Global trademark values for wineries

The brand is the single most important intangible asset in wine businesses, accounting for 17.5% of enterprise value on average, according to latest data.

How the expert in the Amazon trademark case determined a royalty rate

In the recent Amazon Tax Court case, the IRS challenged the valuation of trademarks the company transferred to its overseas subsidiary. But Amazon prevailed, and here's an explanation of the comparable uncontrolled transaction (CUT) method its expert used to sift through thousands of transactions.

Questions to ask when valuing intellectual property

Only after a thorough due diligence is done can an analysis be made of what intellectual property is worth.

Court Nixes Royalty Calculation Relying on Unalike Prior Licenses

Court says prior licensing agreements undergirding expert’s hypothetical reasonable royalty have no bearing on what the parties would have negotiated for the trademark in dispute; court finds calculation too speculative to assist jury and excludes it.

Court Distinguishes Between Proving Fact of Damage and Amount

Court upholds lost profits award, noting at trial plaintiff established “the fact of damages” with the requisite certainty; defendant deprived plaintiff of learning about job applicants, some of whom plaintiff would have hired to perform additional work.

Brand valuation mandate in India sparks talk of new rules

Wide variations in estimates of brand valuations trigger talk of a new set of valuation rules.

Trademark values of global underwear brands

Average royalty rates for underwear trademarks are about 3% on revenues, considerably lower than typical royalty rates signed in license agreements.

Whataburger grills Wonder Woman over logo

If next year's Wonder Woman pic is boffo, it will raise the stakes in the "friendly" talks going on between Whataburger and DC Comics over the superheroine's "stacked W" logo.

Court Nixes Royalty Calculation Relying on Unalike Prior Licenses

Court says prior licensing agreements undergirding expert’s hypothetical reasonable royalty have no bearing on what the parties would have negotiated for the trademark in dispute; court finds calculation too speculative to assist jury and excludes it.

Arctic Cat v. Sabertooth Motor Group

Court says prior licensing agreements undergirding expert’s hypothetical reasonable royalty have no bearing on what the parties would have negotiated for the ...

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