UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BARRINGTON MUSIC 

PRODUCTS, INC.. )

)

Plaintiff, )

)

vs. ) CAUSE NO. 3:16-cv-006-RLM

)

MUSIC ARTS CENTERS, GUITAR )

CENTER STORES, INC., EASTMAN )

MUSIC COMPANY, and WOODWIND )

& BRASSWIND, INC., )

)

Defendants. )

MEMORANDUM AND ORDER

A few matters pend in relation to the trial set to begin on May 16.

Barrington asks for oral argument on two of those matters, but scheduling oral

argument would delay the court’s ruling, and the court believes it has enough

information, or is not likely to gain more information necessary for a pre-trial

ruling. Accordingly, the court denies Barrington's motion for oral argument

[Doc. No. 115]. 

A.

At the pretrial conference, when the court addressed Barrington's motion

to have judicial notice taken of the ownership and validity of the trademark at

issue, the defendants came forth with a factual offer. In light of that offer, the

court invited the parties to submit briefs on the issue. They have done so.
Barrington asks that the court take judicial notice that it (or its

predecessor) registered the VENTO® marks with the USPTO on August 10,

2010 and submitted combined declarations of use and inconstestability with

the trademark office on August 10, 2016. Based on those facts, which can be

accurately and readily determined from sources whose accuracy cannot

reasonably be challenged, see Fed. R. Evid. 201(b)(2), Barrington asks the

court to further notice that its marks are incontestable under 15 U.S.C. §

1605. 

The defendants respond that VMB, LLC, and not Barrington, registered

the VENTO® marks. Barrington produced a document that purports to be an

assignment of the marks from VMB to Barrington on December 31, 2013. In

February 2015, VMB sent a cease–and–desist letter to the defendants. A week

later, the Indiana Secretary of State dissolved VMB. At the beginning of April

2015, VMB filed the trademark assignment to Barrington with the USPTO.

Dennis Bamber, who the court understands to have been a principal of both

VMB and Barrington, testified at his deposition that he couldn’t remember

exactly when the trademark assignment was signed. 

From these facts—which Barrington apparently doesn’t dispute—the

defendants argue that either VMB couldn’t effectively transfer the marks to

Barrington with the April 2015 notice to the USPTO because it had ceased to

exist when the Secretary of State dissolved in February, or VMB assigned the

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marks to Barrington in December 2013 and so misrepresented the marks’

ownership when VMB sent the cease–and–desist letter in February 2015. 

The defendants’ arguments don’t appear to have anything to do with the

marks’ incontestability, which in turn defeats the defendants’ arguments. The

undisputed facts relating to the filings with the USPTO make the VENTO®

marks incontestable under 15 U.S.C. § 1065, which amounts to “conclusive

evidence of . . . the registrant’s ownership of the mark . . .” subject to nine

specific defenses allowed despite incontestability, 15 U.S.C. § 1115(b), and the

defendants don’t link their argument to any of those nine specific defenses. 

Beyond that, the series of events the defendants relate don’t undermine

Barrington’s contention that the right to the marks passed from VMB to

Barrington when the assignment was filed with the USPTO. The defendants

assume that once it was dissolved, VMB couldn’t transfer anything. That

overstates the limits on what a dissolved corporation can do under Indiana law:

“A dissolved corporation continues it corporate existence but may not carry on

any business except that appropriate to wind up and liquidate its business and

affairs, including . . . disposing of it properties that will not be distributed in

kind to its shareholders . . . .” Ind. Code. § 23-1-45-5-(a)(2). Mr. Bamber’s

inability to recall when the assignment was signed doesn’t matter.

The court GRANTS Barrington’s request for judicial notice of the Vento

marks’ ownership and validity [Doc. No. 99]. 

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B.

Barrington seeks to exclude all or part of the testimony of defense expert

Dr. Jeffrey A. Stec. The principal argument relates to the implied

characterization of Dr. Stec as a rebuttal expert. The scheduling order set a

January 31 deadline for expert disclosures “from a party with the burden of

proof,” and a March 30 deadline for expert disclosures “from a party offering a

rebuttal expert report . . . .” The defendants identified Dr. Stec and served his

report on March 30. His report claims only to “review and critically evaluate”

the expert disclosures of Jeffrey Samuels, who was disclosed as an expert

witness for Barrington. Barrington has decided not to present Mr. Samuels’s

opinion, and so contends that Dr. Stec has nothing to rebut. Barrington also

argues that to the extent some of Dr. Stec’s opinions might be offered on some

other theory, those opinions are based on flawed methodology. 

The court overrules, as a pretrial matter, Barrington’s objections to Dr.

Stec’s testimony. Barrington might well be right that its decision not to call Mr.

Samuels will make anything Dr. Stec has to say irrelevant or inadmissible.

Because he wasn’t disclosed by January, the court would be hard–pressed to

allow him to offer opinions that are relevant only to issues on which the

defendants bear the burden of proof. See Fed. R. Civ. P. 37(c)(1). But expert

testimony isn’t the only thing an expert can rebut. The court can’t say that

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even without Mr. Samuels, Barrington’s case in chief won’t include evidence for

which an opinion in Dr. Stec’s report might be admissible in rebuttal. 

Barrington’s arguments concerning the admissibility of Dr. Stec’s

opinions under Fed. R. Evid. 702 aren’t persuasive as justification for a

preemptive pretrial exclusion. First, Barrington surprisingly implies that Dr.

Stec can’t offer opinions based on “self serving” testimony from Barrington’s

Rule 30(b)(6). Setting aside the question of whose interest a witness’s testimony

is allowed to serve, see, e.g., United States v. Sklena, 692 F.3d 725, 733 (7th

Cir. 2012) (“To say that evidence is “self–serving” tells us practically nothing: a

great deal of perfectly admissible testimony fits this description.”), experts can

base opinions on information of a sort others in the field routinely and

reasonably rely, and the court has seen nothing to suggest that experts don’t

routinely and reasonably rely on information from knowledgeable people within

the corporate hierarchy. 

Second, Barrington sets forth its reasons for thinking that Dr. Stec’s

methodologies are substandard. There’s layman’s logic in what Barrington

says, but Barrington doesn’t support its critique with any information from the

field of expertise. One reason courts allow expert testimony is that what science

knows might be counter–intuitive to a layperson. See, e.g., United States v.

Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (psychological research on accuracy

of eyewitness identification might be admissible because it contradicts what

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most people think). Barrington’s criticisms seem better suited for cross

examination. 

For these reasons, while objections are trial might be well–taken, the

court overrules, as a pretrial matter, Barrington’s objections to Dr. Jeffrey

Stec’s expert testimony [Doc. No. 107]. 

C.

The same general principles lead the court to overrule Barrington’s

objections to anticipated testimony of Joshua Lathrop. One difference between

Mr. Lathrop and Dr. Stec is that there will be a Barrington expert for Mr.

Lathrop to rebut. The difference is crucial because the court can’t know what

part of Mr. Lathrop’s testimony will be strictly rebuttal until it hears the

testimony of Barrington expert McSorely. The court agrees with the general

principle on which Barrington relies—that a rebuttal witness ordinarily can’t,

under the case management order entered in his case, offer independent

opinions on which the party calling him bears the burden of proof—but a

rebuttal witness can (within the scope of his disclosure) explain why the

opinion being rebutted is wrong. There is a fine line between offering one’s own

opinion on a topic and explaining why another’s opinion on the topic in

mistaken; that line can be difficult to find at trial, and is nearly impossible to

identify before trial. 

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To the extent Barrington’s objections are based on reliability of

methodology, as with Dr. Stec, the court finds the objections either impossible

to decide before trial, or as raising questions for cross-examination rather than

pretrial exclusion. 

The court overrules, as a pretrial matter, Barrington’s objections to the

defendants’ rebuttal expert Joshua Lathrop [Doc. No. 107]. 

D.

On a different topic, at the final pretrial conference, the court asked

Barrington’s counsel to submit a revised proposed pretrial order, including the

submissions that came after Barrington had to file the original proposed

pretrial order. None has been filed; the court assumes the request has fallen

between the tracks of trial preparation. The court directs counsel to submit a

revised proposed pretrial order forthwith. 

E.

For the foregoing reasons, the court:

(1) GRANTS Barrington’s request for judicial notice of the Vento marks'

ownership and validity [Doc. No. 99];

(2) DENIES Barrington's motion for oral argument [Doc. No. 115]; and

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(3) OVERRULES, as a pretrial matter, Barrington's objections to

defendants’ rebuttal expert Joshua Lathrop and Dr. Jeffrey Stec's expert

testimony [Doc. No. 107]. 

SO ORDERED. 

ENTERED: May 10, 2018 

 /s/ Robert L. Miller, Jr. 

Robert L. Miller, Jr., Judge

United States District Court 

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