EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, February 2, 2008

Pizza, Pizza: Judge Excludes Expert Testimony On Likelihood Of Counfusion In Restaurant Battle

How important is the name of a pizza parlor?  If it's in New York, it's been important enough to spawn a seemingly endless stream of litigation, much of it involving Patsy's Pizzeria.  The story starts with Patsy Grimaldi learning to make pizza at his uncle Patsy Lancieri's restaurant, Patsy's Pizzeria, in 1941 at the age of 10.  In 1990, Grimaldi finally decided to open up his own pizzeria under the Brooklyn Bridge, which he called Patsy's.  A problem soon arose, however, because when Grimaldi's uncle died in 1974, his wife took over his pizzeria, and in 1991 she sold the trade name to someone outside the family, leading to litigation and Grimaldi changing the name of his pizzeria to Grimaldi's Pizzeria. (while Patsy's won the litigation battle, the pizza crown goes to Grimaldi's, which is by far the best pizza I've ever had; Patsy's, not so much).

There has been, however, a longer rivalry between Patsy's Pizzeria, which opened in 1933 in East Harlem, and Patsy's Italian Restaurant, which opened in 1944 at West 56th Street.  For the most part, though, these two restaurants have peacefully co-existed, with the former mainly serving pizza and the latter serving a more complete Italian style menu.  As the parties both attempted to sell pasta sauces in jars for retail distribution, however, and as Patsy's Pizzeria began expanding to the outer boroughs, things finally came to a head, with Patsy's Italian Restaurant suing Patsy's Pizzeria for, inter alia, common law trademark infringement and unfair competition.

In support of its claim, Patsy's Italian Restaurant attempted to call Rob Wallace, an "[e]xpert in all trademark, trade dress, package design, product design, brand dilution, likelihood of confusion, consumer research and brand identity issues," as an expert witness. See Patsy's Italian Restaurant, Inc. v. Banas, 2008 WL 222348 at *1 (E.D.N.Y. 2008).  Wallace would have testified about the likelihood of confusion based upon the similarity of the marks Patsy's Pizzeria and Patsy's Italian Restaurant. See id.  The problem with this testimony, however, is that pursuant to Federal Rule of Evidence 702, expert testimony is only admissible, inter alia, if it "will assist the trier of fact to understand the evidence or to determine a fact in issue."  In other words, expert testimony is inadmissible when jurors could just as easily draw the conclusion drawn by the expert. See id.  This is exactly what the court found in excluding Wallace from testifying as it concluded that Patsy's Italian Restaurant "failed to show why Wallace's testimony would assist the jury on the issue of likelihood of confusion when they can just as easily make a comparison between the parties' marks." Id

This ruling makes sense to me, and as the court noted, it is consistent with prior case law on the issue.  Thus, for instance, in Malletier v. Dooney & Bourke, Inc., 2007 WL 45300868 (S.D.N.Y 2007), the court precluded an expert from testifying about, inter alia, the likelihood of confusion between the use of color in the multicolor handbags of Dooney & Bourke & Louis Vuitton.



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