USDC IN/ND case 3:21-cv-00645-DRL-MGG document 56 filed 01/12/23 page 1 of 5

UNITED STATES DISTRICT COURT

Northern District of Indiana
South Bend Division
FOREST RIVER, INC., )
)
Plaintiff, )
) CASE NO.: 3:21-cv-645-DRL-MGG
v. )
) JOINT STATUS REPORT
INTECH TRAILERS, INC., )
)
Defendant. )

Pa ff F e R e , I c. ( F e R e ) a d Defe da Tec T a e , I c.

( Tec ) (collectively, e Pa e ) e eb a d e ec f submit the following

status report a eC N e be 21, 2022 O de ( O de ). T e Pa e add e

eac f e c e f eC c ed g de (D c. N . 47) be :

A. Status of Settlement Negotiations, Mediation, or other Alternative Process.

The Parties conducted a formal mediation before Court-appointed mediator, Terry

Shewmaker, on May 12, 2022. Unfortunately, the Parties were unable to resolve the case at that

mediation. The Parties have not engaged in any additional settlement negotiations since that

mediation but both remain open to another mediation.

B. Likelihood and Scope of Any Dispositive Motion(s).

Plaintiff: Plaintiff intends to move for summary judgment on each of its claims and

aga eac f Defe da aff a e defe e .

Defendant: Defendant w c e Pa ff s summary judgement motion, but expects

to file no such motion of its own.

C. Need for Oral Argument on Any Dispositive Motion(s).

The Parties believe that oral argument would assist the Court in deciding any dispositive

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motions but defer to the Court and to the specific, but as yet undisclosed, issues of those

motions and the challenges thereto as to whether oral argument is necessary.

D. Claims to be Tried Absent Any Dispositive Motion Ruling.

Plaintiff has brought the following claims, all of which will be tried absent a dispositive

motion ruling:

Count I – Federal Trademark Infringement, 15 U.S.C. § 1114(1)(A)

Count II - Trademark Infringement under the Lanham Act, 15 U.S.C. §

1125(a)(1)(A)

Count III - Trademark Infringement under Indiana Code § 24-2-1-13

Count IV – Common Law Unfair Competition

Defendant has raised defenses which will be tried absent any dispositive motion ruling,

including:

Assumption of the Risk/Incurred Risk/Causation in Fact; and

Failure to Mitigate Damage.

E. Need for the Court to Resolve any Choice of Law Issues.

None.

F. Duration of the Anticipated Trial.

The Parties anticipate that the trial of this matter will require two weeks.

G. Unique Issues that May Arise for this Trial.

At this time, the Parties are not aware of any legal unique issues that may arise for the

trial. Procedurally, however, Defendant anticipates seeking an actual jury viewing of branded

products in dispute, such as by inspection of two representative travel a e eC

parking lot/garage. Plaintiff intends to oppose the jury viewing as unnecessary, inefficient, and

costly given the myriad of other ways that jurors could be presented with the appearances of the
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two trailers in question (including by way of photograph and video). Defendant also anticipates

that c e d ec e e voir dire may need to be more comprehensive than the

Court ordinarily uses and that procedures for such may need to be briefed and reviewed if

agreement is not reached with the Court. This may impact trial scheduling. The Parties reserve

the right to amend this position upon scheduling of the trial and depending on witness

availability for same.

H. Number of Anticipated Experts and Brief Summary of Expected Testimony.

Plaintiff: Plaintiff intends to present the testimony of two experts at the trial of this

matter. Each expert, along with a brief summary of their expected testimony, is set forth below:

Stephen A. Holzen, Stout Risius Ross, LLC: Mr. Holzen is an expert in

damages calculation as it pertains to intellectual property disputes and will

provide expert testimony regarding the damages suffered by Plaintiff as a result

f Defe da s infringement, ba ed e e f Defe da f a ca

d c e a a d ca c a f Defe da f f e ae f f g g

products, as permitted by the Lanham Act. Beca e Defe da f ge e

ongoing, Mr. Holzen anticipates issuing a supplemental report to incorporate up-

to-date calculations f Defe da f a.

Prof. David J. Franklyn: Professor Franklyn is an expert in consumer

perception and behavior issues, specifically as pertaining to intellectual property

disputes. Professor Franklyn will testify regarding the level of confusion between

Pa ff De a Te a RV a d Defe da Te a RV , ba ed

his experience, research, and the results of a consumer survey. Professor

Franklyn is expected to testify that a significant percentage of consumers are

confused by Defe da use of infringing marks.

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Defendant: Defendant intends to present the expert testimony of Thomas J. Maronick,

an expert both in marketing and in conducting surveys with respect to the likelihood of

confusion issues in trademark infringement litigation. Mr. Maronick will testify based

upon his experience and research regarding the flaws in the survey methodology used by

Mr. Franklyn, the impact of those flaws upon the conclusions drawn by Mr. Franklyn,

the conclusions which can be e be d a f M .F a e , a d e

results proper survey methodology should have disclosed in this lawsuit.

I. Likelihood and Scope of Possible Daubert Motions.

Plaintiff: P a ff a e de e Defe da e e ,M .T a Ma c .T a

deposition is currently scheduled for February 8, 2023. As a result, Plaintiff is unable to

determine with certainty what the scope of any Daubert motion to exclude Mr. Maronick will

be at this time. W a a d, a d ba ed Pa ff e e f M . Ma c R e

26(a)(2)(B) report, Plaintiff does anticipate filing a motion to exclude at least some portions of

M . Ma c e a a.

Defendant: Defendant expects to file a motion to bar the entirety of Mr. Frank

testimony at trial and significant portions of the testimony of Mr. Holzen. Defendant also

expects to file a motion to bar the use of certain types of documentary evidence it expects

Plaintiff to rely upon, as violative of various rules of evidence.

J. Any Other Matters that would assist the court in preparing for the conference,
final scheduling, and trial.

Se e be a a ade f e parties. Scheduling trial in that month

would be a serious inconvenience for the parties.

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Date: January 12, 2023
Respectfully submitted,
s/ Ryan M. Fountain
Ryan M. Fountain (Attorney No 8544-71)
420 Lincoln Way West
Mishawaka, Indiana 46544
Tel.: 574-258-9296
Fax: 574-247-1237
Email: RyanFountain@aol.com
Counsel for Defendant, inTech Trailers,
Inc.
s/ Philip R. Bautista
Philip R. Bautista (Ohio Bar No. 0073272)
pbautista@taftlaw.com
JoZeff W. Gebolys (Ohio Bar No.0093507)
(admission via pro hac vice)
jgebolys@taftlaw.com
TAFT STETTINIUS & HOLLISTER LLP
200 Public Square, Suite 3500
Cleveland, Ohio 44114
Phone: (216) 241-2838
Fax: (216) 241-3707
Tracy N. Betz (Indiana Atty. No. 24800-53)
tbetz@taftlaw.com
Neil R. Peluchette (Indiana Atty. No.
35577-82)
npeluchette@taftlaw.com
TAFT STETTINIUS & HOLLISTER LLP
One Indiana Square, Suite 3500
Indianapolis, Indiana 46204
Phone: (317) 713-3544
Fax: (317) 715-4535
Counsel for Plaintiff Forest River, Inc.