Email from Consumer to Trademark Plaintiff’s Customer Service Department Admissible on Issue of Confusion under State of Mind Exception to Hearsay Rule

From T. Marzetti Co. v. Roskam Baking Co., No. 2:90 CV 584, 2010 WL 909582, at *2 (S.D. Ohio March 11, 2010):

Roskam's Email Motion in Limine to prevent Marzetti from using an email dated July 13, 2009, sent from Diane Meale to Roskam's Customer Service Department (the “Meale Email”) as evidence in the likelihood of confusion analysis. Roskam argues that the Meale Email is inadmissible hearsay, under Fed.R.Evid. 801(c) and Fed.R.Evid. 802, that the declarant is unidentifiable for purposes of the hearsay analysis, and that the email is not subject to any of the hearsay exceptions, under Fed.R.Evid. 803. Marzetti counters that the Meale Email is admissible under Fed.R.Evid. 803(3) state of mind exception to the hearsay rule.

Analysis under federal trademark and unfair competition statutes considers “whether the defendant's use of the disputed mark is likely to cause confusion among consumers regarding the origin of the goods offered by the parties.” Daddy's Junky Music Stores, Inc. v. Big Daddy's Family Music Ctr., 109 F.3d 275, 280 (6th Cir.1997). The Sixth Circuit has held that evidence of actual confusion is one of eight factors to be considered in the likelihood of confusion analysis. See Frish's Rests., Inc. v. Elby's Big Boy of Steubenville, Inc., 670 F.2d 642, 648 (6th Cir.1982) (quoting Toho Co., Ltd. v. Sears, Roebuck & Co., 645 F.2d 788 (9th Cir.1981)).

As stated above, hearsay is generally inadmissible under the Federal Rules of Evidence. Fed.R.Evid. 802. The state of mind exception allows admission of “[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.” Fed.R.Evid. 803(3). Other courts have found correspondence similar to the Meale email to be admissible under the state of mind hearsay exception. See OmniAmerica Group. v. Street Gold Records, Inc., 916 F.Supp. 672, 679 (N.D.Ohio 1996) (admitting “a log of radio listeners who have called WMJI out of confusion” and letters and facsimiles from confused listeners); Freddie Fudruckers, Inc. v. Ridgeline, Inc., 589 F.Supp. 72, 76 (N.D.Tex.1984) (“Hearsay letters and statements of consumers are admissible in evidence under Fed.R.Evid. Rule [sic] 803(3) where they reveal the then existing state of mind of the writers and speakers and their state of mind is relevant to the case.”). The Court finds that the Meal Email is admissible under the state of mind exception to the hearsay rule and therefore, Roskam's Email Motion in Limine is DENIED.

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