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What is an expert witness?…and how to avoid ever having to rely on one!
  • Jul 31, 2020
  • Latest News

by June Dennis - Expert Witness, Higher Education Specialist, Chartered Marketer, Trainer, Consultant and Freelancer

I’m often asked about being an expert witness and people are always intrigued about what an expert witness in marketing does.

Essentially, an expert witness is someone with specialist knowledge of, or experience in, a particular field or discipline. Their role, indeed, duty, is to provide an impartial opinion on specific facts or incidences within their area of expertise to inform the court. Usually, it involves writing a report which can be seen by both parties. Occasionally, it means giving verbal evidence in court.

We are used to hearing about pathologists, finger print experts and psychologists being called to the witness stand, but why would a marketer be consider an expert witness?

My first case involved a large UK clothing retailer and a US sports brand. Both parties involved in the case had instructed first class legal representation and I had to give evidence over a two day period. It was scary! Part way through giving my evidence, on the second day, the two parties agreed to settle out of court, as a result of the evidence I presented. Wow!! I can’t tell you how good that made me feel!

Most of my expert witness experience has been related to two main areas of law – intellectual property and contract law. Today, I’m focusing on intellectual property.

Intellectual Property
That first case was about branding. A US sports brand entered the UK and then started to sell clothing with a logo that was the same name as an established clothing retailer in the UK. My role was to determine if there could be any possible confusion in the market place as a result of this. I demonstrated that the target markets of both organisations overlapped and I undertook market research that indicated that many of the retailer’s customers did think the sports company branded clothing had some connected with the retailer. It was clear that, as a result of my evidence, there was a case to be heard and the two brands agreed to settle out of court rather than continue with the case.

Some of the other cases I was involved in were less clear cut: A confectionary brand that intended to launch a new chocolate bar brand which was the name of a global clothing retailer; A grocery store that marketed a range of outerwear using a similar brand name as an established brand.  An insurance case where the claimant was expecting to receive a shipment of ‘designer’ garments but received a hotchpot of manufacturer own labels instead.  Some cases related to design attributes, the most interesting one being a fashion designer claiming that a global retailer had copied her design from over 40 years ago! That was complex!

I’ve probably written around 10 expert witness reports relating to intellectual property. Usually, legal proceedings could have been avoided if businesses had done their homework better.

So, if you want to avoid finding your business in court, consider the following:
If you’re entering a new market (geographical or product), do your research first & check the competition and brands already established. There is absolutely no excuse for not knowing who the national retailer chains are in the UK, for example.
Remember, the above also relates to sub-brands and promotional activity.
It might not be the end of the world if there is a similar product/brand/campaign out there – communicate with the other party before you launch and ensure you record any agreements.
Ensure you have adequate protection for your brands and work – trade marks, copyright.
Also, ensure that your trademarks cover everything and everywhere that you intend to expand into in the future.
If you have used a brand name or catchphrase in the past and want to keep it, make sure you refer to it or use it regularly so you can continue to claim it as your own. Don’t leave it discarded for decades.
Remember, if you aggressively protect your intellectual property, that’s great, but others will be looking for you to slip up!
Make sure you track and record your new product development process. How did you get to decide to put 17 buttons on that cardigan? Record your inspiration sources and take notes of discussions as you refine your ideas. If you can prove that the similarities with an existing design are coincidental, you may be more protected.

And finally!
Try to settle out of court – the costs of going to court are usually painful for both parties.

Click here to find out more about my expert witness experience.