No New Trial When Evidence Allegedly Causing Prejudice Disclosed During Discovery

Following a jury verdict against plaintiff on its trade dress infringement claim over a water bottle, the court denied plaintiff’s motion for a new trial and determined the introduction of several third-party water bottles was not impermissible under Rule 403. “At trial, the Court admitted 113 bottles that shared a basic configuration with the [plaintiff’s] Bottle but were made by neither [plaintiff nor defendant]. . . . A large number of similarly-shaped bottles sold by a large number of other brands supports an inference that the relevant members of the public do not associate that shape with any single source. . . . [Because defendant disclosed 46 of these bottles to plaintiff during discovery, plaintiff] had every opportunity to discover the market share and advertising revenue of these other brands, and then to make specific arguments to the jury about the probative value of these bottles. Having opted not to pursue this equally accessible and easily discoverable information, [plaintiff] cannot now complain that it is prejudiced without it. . . . The bottles were relevant, particularly in conjunction with testimony about the circumstances of their acquisition [over the internet and at a trade show]. Any prejudice they caused was due to [plaintiff’s] choice not to pursue readily available evidence. And, in any case, any supposed prejudice was largely erased by [plaintiff’s] cross-examination and closing argument.”

Can’t Live Without It, LLC d/b/a S’well Bottle v. ETS Express, Inc., 1-17-cv-03506 (NYSD 2018-06-11, Order) (Jed S. Rakoff)

2018-06-13T11:27:02+00:00 June 13th, 2018|Docket Report, Trademark|