Fishman Transducers, Inc. v. Stephen Paul d/b/a Esteban, et al.

In this intellectual property dispute, the US Court of Appeals for the First Circuit, District of Massachusetts, affirmed a lower court's damages decision in favor of Analysis Group client Stephen Paul, a musician doing business as Esteban, along with codefendant resellers of Esteban products.

The plaintiff had filed suit against Esteban and codefendants alleging Lanham Act violations, trademark infringement, and false advertising. The plaintiff claimed that the defendants advertised, promoted, and sold Esteban guitars while falsely misrepresenting to the public in infomercials and on websites that Esteban guitars were equipped with Fishman electronic components. Fishman sought an equitable amount of the defendants' profits in damages.

The law firm representing Esteban et al., Kenyon & Kenyon LLP, retained a team from Analysis Group, led by Managing Principal John Jarosz, to provide expert testimony and analytical support, and to evaluate the plaintiff's claimed damages.

In March 2011, the defendants were found by a jury to have engaged in unfair competition, trademark infringement, and false advertising by selling and promoting guitars that included Fishman equipment. However, the jury had declined to find that the defendants had acted "willfully," and it found that the damages evidence did not support a theory of unjust enrichment by the defendants. The district judge had found that the plaintiff's expert's report "furnished neither a figure or range for damages suffered by Fishman nor supplied the jury with data from which it could make an intelligent estimate of Fishman's damages, if any, caused by the infringement."

Fishman filed an appeal, which was heard in July 2012. The First Circuit Court of Appeals affirmed the previous decision, holding that "under any standard of proof, the evidence clearly established that no other verdict would have been reasonable." The court noted in its decision that the plaintiff's expert's report was "merely a basis for jury speculation and [the] testimony was properly excluded."

Testifying Experts