Email/Text Admissibility — Hearsay: In Trademark Cases, A Party May Introduce Evidence of Extrajudicial Statements Made to That Party to Show Actual Confusion

Ishow.com, Inc. v. Lennar Corp., 2017 U.S. Dist. LEXIS 109659 (W.D. Wash. July 14, 2017):

This matter comes before the Court on defendants' corrected "Motions in Limine." Dkt. # 82-1. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:

(7) Evidence of Actual Confusion

Plaintiff intends to offer into evidence three emails Paul Barnett received to show actual confusion in the marketplace. Defendants argue that the emails are inadmissible hearsay and are irrelevant. Plaintiff clearly intends to rely on the emails for the truth of at least some of the matters asserted therein (such as the fact that Ms. Stein is a relator and that Mr. Maples had recently walked through a home in Mesa, AZ), and one could argue that none of the exceptions to the hearsay rule applies. The Ninth Circuit, however, has been willing to accept testimony from corporate witnesses summarizing third-party statements indicating confusion. See Lahoti v. Vericheck, Inc., 636 F.3d 501, 509 (9th Cir. 2011) (finding the testimony of two employees regarding telephone calls from consumers confused by competing websites not hearsay). The Lahoti court noted "no concern" about summary evidence of out-of-court [*8]  statements and their contents. Id. at 509 n.4. In this case, the evidence is more trustworthy than that which was of "no concern" in Lahoti: at least we know exactly what the out-of-court declarants said and do not have to rely on Mr. Barnett to summarize their expressions of confusion. Although strict application of the hearsay rules would likely result in a finding of inadmissibility, the Court is not free to ignore the Ninth Circuit and will adopt a rule that, in trademark cases, a litigant may introduce evidence of out-of-court statements made to the party in order to show actual confusion.

Defendants' relevance argument has some merit, but does not warrant exclusion. At least two of the emails plaintiff intends to offer are ambiguous as to whether the author was confused regarding the source of the home/development that was the subject of the inquiry. The authors are also situated differently than home buyers, with two of them being vendors in the demonstration home market who would likely experience plaintiff's goods and advertising in a way that was significantly different than the average home buyer. Having declined to call the authors as witnesses, plaintiff may not resolve the ambiguities [*9]  or evidentiary gaps by having Mr. Barnett testify regarding his own impressions of what the authors meant, how the messages should be interpreted, or how similar the authors are to the relevant customers. Mr. Barnett may testify that he received the emails and can identify the senders and any factual information he has regarding the home/development that is the subject of the message. It will be up to the jury to determine whether one or more of the messages evince actual confusion on the part of actual consumers in the relevant time frame.

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