Aroma360 LLC et al v. Scentiment, LLC

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-25031-CIV-ALTONAGA/Reid
AROMA360 LLC, et al.,
Plaintiffs,
v.
SCENTIMENT, LLC,
Defendant.
______________________/
ORDER
THIS CAUSE came before the Court on Plaintiffs, Aroma360 LLC and Hotel Collection
LLC’s [Daubert] Motion [ECF No. 66] (“Pls.’ Mot.”); and Defendant, Scentiment, LLC’s
Omnibus Daubert Motion [ECF No. 67] (“Def.’s Mot.”). 	Plaintiffs and Defendant filed their
respective Responses [ECF Nos. 74, 75], followed by Replies [ECF Nos. 92, 96]. The Court has
reviewed the parties’ submissions, the record, and applicable law.
I. BACKGROUND
Procedural Background. 	Plaintiffs and Defendant are businesses that sell scent-related
products. 	(See generally Compl. [ECF No. 1]). 	Plaintiffs allege Defendant engaged in unfair
competition by using the name “Hotel Collection” and associated logos (collectively, the “Hotel
Collection Mark” or the “Mark”) that Plaintiffs use to promote and sell their products. (See id. ¶¶
9–41).
Plaintiffs assert three claims for relief1 based on unfair competition in violation of: the
1 Plaintiffs initially asserted four claims, including trademark infringement under the Lanham Act (Count
I). (See generally Compl.). On November 19, 2025, the Court issued an Order [ECF No. 113] granting
summary judgment for Defendant on Count I and narrowing the remaining claims. (See generally Nov. 19,
2025 Order).
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Lanham Act, 15 U.S.C. section 1125(a) (Count II); the Florida Deceptive and Unfair Trade
Practices Act, Fla. Stat. section 501.201 et seq. (Count III); and Florida common law (Count IV).
(See id. ¶¶ 53–72). Defendant raises several affirmative defenses, including that Plaintiffs do not
have enforceable rights to the Hotel Collection Mark, which is “an invalid, descriptive trademark,
lacking distinctiveness, acquired distinctiveness, or secondary meaning”; and a counterclaim
seeking a declaratory judgment that the Hotel Collection Mark is not protected. (Ans. [ECF No.
31] 9);2 see also Royal Palm Props., LLC v. Pink Palm Props., LLC, 950 F.3d 776, 782–83 (11th
Cir. 2020) (explaining that federal trademark protection is available only to a mark that is
inherently distinctive; or that has acquired distinctiveness over time, such as when a mark becomes
associated with a particular source and thus takes on a widely understood “secondary meaning”
(citations omitted)).
The Experts and Motions. 	Each side retained several experts who prepared reports
focused variously on whether the Hotel Collection Mark is protected; whether Defendant engaged
in unfair competition by using the Mark; and the extent of any damages Plaintiffs have sustained.
Defendant’s proposed experts include (1) David K. Friedland, a trademark attorney who
would testify that the Hotel Collection Mark is not distinctive because it has not acquired
secondary meaning; (2) Brian M. Sowers, a market researcher who would likewise assert that the
Mark lacks secondary meaning; and (3) university marketing professor Dr. Himanshu Mishra,
who concludes Defendant’s use of the Mark was unlikely to cause consumer confusion and thus
did not constitute unfair competition. 	(See generally Pls.’ Mot., Ex. 1, Expert R. of David K.
Friedland (“Friedland’s R.”) [ECF No. 66-1]; Pls.’ Mot., Ex. 2, Expert R. of Brian M. Sowers
(“Sowers’s R.”) [ECF No. 66-2]; Pls.’ Mot., Ex. 3, Expert R. of Dr. Himanshu Mishra (“Mishra’s
2 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
of all court filings.
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R.”) [ECF No. 66-3]); see also Frehling Enters., Inc. v. Int’l Select Grp., Inc., 192 F.3d 1330, 1335
(11th Cir. 1999) (explaining that to prevail on a claim of unfair competition under the Lanham
Act, a plaintiff must prove the defendant’s use of a mark was likely to cause consumer confusion
(citations omitted)); ThermoLife Int’l, LLC v. Vital Pharmaceuticals Inc., No. 19-cv-61380, 2020
WL 6781749, at *2 (S.D. Fla. Nov. 18, 2020) (discussing the consumer confusion requirement for
an unfair competition claim under Florida law (citation omitted)).
Plaintiffs’ proposed experts include (1) financial advisor David A. Haas, who estimates the
monetary damages Plaintiffs sustained from Defendant’s use of the Mark; (2) intellectual property
attorney Leslie J. Lott, who rebuts Friedland’s conclusion that the Mark is not distinctive; and (3)
university marketing professor Dr. Wayne D. Hoyer, who responds to Sowers’s and Dr. Mishra’s
Reports. (See generally Def.’s Notice of Filing . . . [ECF No. 68], Ex. 9, Expert R. of David A.
Haas (“Haas’s R.”) [ECF No. 68-10]; Def.’s Notice of Filing, Ex. 1, Rebuttal R. of Leslie J. Lott
(“Lott’s R.”) [ECF No. 68-2]; Def.’s Notice of Filing, Ex. 5, Rebuttal R. of Dr. Wayne D. Hoyer
(“Hoyer’s R.”) [ECF No. 68-6]).
The parties challenge the admissibility of the experts’ testimony. (See generally Pls.’ Mot.;
Def.’s Mot.). 	Plaintiffs argue that Friedland offers unsubstantiated legal conclusions based on
faulty data (see id. 10–20); Sowers relies on a consumer survey of an overbroad population (see
id. 20–21, 24–27); and Dr. Mishra relies on surveys that were prepared using flawed methodology
(see id. 20–27). Defendant contends Haas’s damages calculation is not based on reliable facts or
data (see Def.’s Mot. 13–22);3 Lott’s opinions are misleading and untimely (see id. 4–9); and Dr.
3 Defendant also asserts that certain “damages claims should be excluded” because Plaintiffs “failed to
establish evidentiary support for” those categories of damages. (Def.’s Mot. 13–14). Because this argument
does not concern the admissibility of expert testimony, the Court does not address it. See, e.g., Roland
Corp. v. inMusic Brands, Inc., No. 17-cv-22405, 2022 WL 22907229, at *1 n.1 (S.D. Fla. Sep. 23, 2022)
(discussing the purpose of a Daubert motion (citations omitted)).
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Hoyer employs unreliable methodologies and data (see id. 9–13).
II. LEGAL STANDARD
The Federal Rules of Evidence govern the admissibility and proper scope of expert
testimony. Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if . . . :
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702 (alteration added).
An expert may rely on “facts or data in the case that the expert has been made aware of or
personally observed” — even if otherwise inadmissible — “[i]f experts in the particular field
would reasonably rely on those kinds of facts or data[.]” Id. R. 703 (alterations added). In addition,
an expert’s opinion may “embrace[] an ultimate issue” of fact, but it may not offer legal
conclusions. Id. R. 704 (alteration added); see also Montgomery v. Aetna Cas. & Sur. Co., 898
F.2d 1537, 1541 (11th Cir. 1990) (“An expert may not, however, merely tell the jury what result
to reach.” (citation omitted)).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court explained that Rule
702 requires district courts to ensure “that an expert’s testimony both rests on a reliable foundation
and is relevant to the task at hand.” 	509 U.S. 579, 597 (1993). 	Courts must perform this
“‘gatekeeping’” function no matter how scientific, technical, or specialized the evidence. United
States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004) (quoting Daubert, 509 U.S. at 589 n.7,
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597; citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999)). 	“This function
inherently requires the trial court to conduct an exacting analysis of the foundations of expert
opinions to ensure they meet the standards for admissibility under Rule 702.” 	Id. (emphasis,
alteration, quotation marks, and citation omitted).
III. DISCUSSION
The Court begins by addressing Plaintiffs’ Motion and then considers Defendant’s Motion.
Upon review, the Court concludes that both Motions are due to be denied, except to the extent that
Plaintiffs challenge proposed testimony offering legal conclusions.
Plaintiffs’ Motion. 	Plaintiffs raise objections to the data and methodologies underlying
Defendant’s experts’ opinions. For example, Plaintiffs assert that Friedland improperly bases his
assessment of third-party usage of the Mark on “a trademark search report performed by a third
party[,]” which Plaintiffs view as an unreliable source. 	(Pls.’ Mot. 17 (alteration added)).
According to Plaintiffs, the survey discussed in Sowers’s Report is overbroad, as it uses data from
adults who purchased any scent-related product, rather than focusing on Plaintiffs’ “luxury home-
scenting market[.]” (Id. 25 (emphasis and alteration added)). Plaintiffs critique Dr. Mishra’s use
of a survey format known as “Eveready[,]” asserting it is appropriate only for “top-of-mind”
(universally recognizable) brands unlike Hotel Collection, yielding “artificially low[] confusion
scores” in Dr. Mishra’s Report. (Id. 21–22 (alterations added)).
These criticisms are not grounds for excluding expert testimony. See, e.g., Mcgarity v. FM
Carriers, Inc., No. cv-410-130, 2012 WL 1028593, at *7 (S.D. Ga. Mar. 26, 2012) (citations
omitted). 	Rather, they are best addressed at trial, as “the identification of flawed data or facts
relied upon by an expert is precisely the role of cross-examination[.]” 	Id. (alteration added;
citations omitted); see also Coquina Invs. v. Rothstein, No. 10-60786-Civ, 2011 WL 4949191, at
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*8 (S.D. Fla. Oct. 18, 2011) (“As a general rule, the factual basis of an expert opinion goes to the
credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the
factual basis for the opinion in cross-examination.” (quotation marks omitted; quoting Synergetics,
Inc. v. Hurst, 477 F.3d 949, 955–56 (8th Cir. 2007))); cf. Rosenfeld v. Oceania Cruises, Inc., 654
F.3d 1190, 1193 (11th Cir. 2011) (“[I]n most cases, objections to the inadequacies of a study are
more appropriately considered an objection going to the weight of the evidence rather than its
admissibility.” (alteration added; quotation marks and citation omitted)).4
Plaintiffs also advance a separate argument: Friedland should be precluded from testifying
because he offers legal conclusions disguised as expert opinions. (See Pls.’ Mot. 10–20). While
an expert may provide an opinion on an ultimate issue of fact, testimony regarding “the legal
implications of conduct” is impermissible; “the court must be the jury’s only source of law.”
Montgomery, 898 F.2d at 1541 (citations omitted). To protect the Court’s “exclusive prerogative”
to “charg[e] the jury regarding the applicable law[,]” the Court “must remain vigilant against the
admission of legal conclusions[.]” Commodores Entm’t Corp. v. McClary, 879 F.3d 1114, 1129
(11th Cir. 2018) (alterations added; quotation marks and citation omitted).
Plaintiffs are correct that Friedland presents legal conclusions. (See generally Friedland’s
R.). 	In the Report, Friedland asserts that the Mark has not acquired secondary meaning and
“therefore [is] not eligible for common law trademark protection.” (Id. ¶ 81 (alteration added);
see also id. ¶¶ 11, 86). While secondary meaning can be a factual question, see, e.g., FN Herstal
SA v. Clyde Armory Inc., 838 F.3d 1071, 1084 (11th Cir. 2016) (citation omitted), Friedland
4 Plaintiffs also contend that the trademark search report appearing in Friedland’s Report does not
demonstrate any third-party use, and that Friedland does not adequately explain his methodology. (See Pls.’
Mot. 16–19). These, too, are matters for cross-examination. Cf. Jellibeans, Inc. v. Skating Clubs of Ga.,
Inc., 716 F.2d 833, 844 (11th Cir. 1983) (holding that any technical flaws in a survey went to weight rather
than admissibility (citations omitted)).
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appears to reach his opinion regarding secondary meaning by merely applying case law to
Sowers’s survey (see, e.g., Friedland’s R. ¶ 81 (“In view of the existing case law evaluating
secondary meaning survey evidence, Mr. Sowers’[s] survey result . . . supports my opinion that
[the Mark has] not achieved secondary meaning[.]” (alterations added)); see also id. ¶¶ 43–57
(citations omitted)). Moreover, whether a mark is “eligible for” protection is a question of law.
(Id. ¶ 81); see, e.g., Tana v. Dantanna’s, 611 F.3d 767, 773 (11th Cir. 2010) (explaining that proof
of a valid, protectable trademark is an element of a claim under the Lanham Act); NBA Props.,
Inc. v. Dahlonega Mint, Inc., 41 F. Supp. 2d 1341, 1347 (N.D. Ga. 1998) (concluding as a matter
of law that the plaintiffs’ marks were “worthy of protection”).
Certainly, Friedland’s “legal analysis of the facts” is inadmissible. 	United States v.
Bradley, No. 405-cr-059, 2006 WL 8429691, at *4 (S.D. Ga. Feb. 20, 2006) (citations omitted).
Plaintiffs’ Motion is thus granted to the extent Defendant may seek to have Friedland “present
opinions concerning the application of the law to the facts” — including any case law-based
commentary about the legal significance of Sowers’s survey, and any ultimate statement as to
whether the Hotel Collection Mark is a valid, protectable mark. In re Rosenberg, No. 09-13196,
2012 WL 3870351, at *1 (Bankr. S.D. Fla. Sep. 6, 2012) (citations omitted).
At any rate, the Court is not persuaded that Friedland is only able to offer impermissible
legal conclusions. For instance, testimony analyzing or summarizing the trademark search report
Friedland commissioned would not be precluded by the rule against legal conclusions (see, e.g.,
Friedland’s R. ¶¶ 82–83; Def.’s Resp. 17 (citing Capri Sun GmbH v. Am. Beverage Corp., 595 F.
Supp. 3d 83, 133 (S.D.N.Y. 2022))); nor would Friedland’s independent research conducted to
supplement the search report’s findings be precluded (see id. ¶ 69). 	Friedland’s proposed
testimony also draws from the U.S. Patent and Trademark Office’s (“USPTO[’s]”) analyses of
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“Plaintiffs’ three pending applications to register” the Hotel Collection Mark (Friedland’s R. ¶ 71)
— and Plaintiffs do not contend that Friedland is unqualified to testify about USPTO applications
and practices. 	(See, e.g., Pls.’ Mot. 15 (conceding Friedland possesses expertise in trademark
law)).
Consequently, Plaintiffs’ Motion is granted only insofar as Friedland — and indeed, any
expert — may not offer legal conclusions. See Montgomery, 898 F.2d at 1541 (citations omitted).
Defendant’s Motion. As with Plaintiffs, Defendant concentrates its Daubert objections on
the data underlying Plaintiffs’ experts’ opinions. For example, Defendant seeks to exclude Haas’s
calculation of lost profits because Haas adopts Plaintiffs’ as-yet-unproven allegations of consumer
confusion; extrapolates from anecdotal reports to a larger sample size; and “ignores other,
significant factors that influence consumer purchasing decisions.” (Def.’s Mot. 16).5 Defendant
contends Dr. Hoyer neglected to investigate discount stores in assessing the target market for Hotel
Collection products; and if he had done so, “he would have discovered facts that contradict his
conclusion[.]” 	(Id. 10 (alteration added)). 	Lott’s opinions are likewise unreliable, Defendant
insists, because she relied on “a stack of communications to review [provided] by Plaintiffs’
counsel” and “did not investigate the source of the documents[.]” (Id. 7 (alteration added)).
5 Defendant also objects to Haas’s proposed testimony on the ground that he applies an “incorrect” legal
standard. (Def.’s Mot. 14 (citing Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365,
1375 (10th Cir. 1977))). As Defendant notes, Haas cites Big O in asserting that the proper measure of
corrective damages — the amount required to “correct false impressions as to the source of [Plaintiffs’]
products in the marketplace” — consists of 25% of the amount “spent by [Defendant] on consumer-facing
advertising[.]” (Haas’s R. ¶¶ 58, 63 (alterations added; citation and footnote call number omitted); see also
Def.’s Mot. 14–15). Defendant contends Haas’s corrective damages calculation is incorrect because “Big
O has not been adopted by the Eleventh Circuit.” (Def.’s Mot. 14 (quotation marks and citation omitted)).
The Court is not persuaded that Haas applies an incorrect damages standard. Defendant does not contend
the Eleventh Circuit has rejected the approach, approved in Big O, of calculating corrective damages based
on 25% of a defendant’s advertising spend. (See generally Def.’s Mot.); Big O, 561 F.2d at 1375. And as
Haas notes, that approach is grounded in a Federal Trade Commission practice of “requiring businesses that
publish misleading advertisements to pay 25% of their advertising budget on corrective advertising.”
(Haas’s R. ¶ 60 (citations and footnote call number omitted)); Big O, 561 F.2d at 1374.
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Because these arguments challenge the reliability of the data underlying Haas’s, Dr.
Hoyer’s, and Lott’s opinions, they bear on weight rather than admissibility. See Quiet Tech. DC-
8, Inc., 326 F.3d at 1341 (citations omitted); Rosenfeld, 654 F.3d at 1193 (citations omitted). The
Court will not “usurp the jury’s role” in evaluating the persuasiveness of these experts’ anticipated
testimony. Ins. House, Inc. v. Ins. Data Processing, Inc., No. 07-cv-0286, 2009 WL 10670469, at
*10 (N.D. Ga. Feb. 12, 2009) (citation omitted), aff’d, 367 F. App’x 1 (11th Cir. 2010).
Defendant also argues that parts of Lott’s Report are untimely. 	(See Def.’s Mot. 4–6).
Plaintiffs disclosed Lott’s Report after the deadline to exchange affirmative expert reports had
passed. (See id. 4; Sched. Order [ECF No. 25] 1). While Plaintiffs label Lott’s Report a rebuttal
report, Defendant insists certain sections include affirmative opinions about Plaintiffs’ prima facie
case and that Lott should be precluded from testifying about those opinions. (See Def.’s Mot. 4).
Parties must disclose expert reports, including rebuttal reports, “at the times and in the
sequence that the court orders.” Fed. R. Civ. P. 26(a)(2)(D). A rebuttal report may offer evidence
“intended solely to contradict or rebut evidence on the same subject matter identified by” the expert
report it rebuts. Id. R. 26(a)(2)(D)(ii). And “a rebuttal opinion should not be used to advance new
arguments or present new evidence.” 	Lebron v. Royal Caribbean Cruises, Ltd., No. 16-24687-
Civ, 2018 WL 3583002, at *2 (S.D. Fla. July 26, 2018) (citation omitted).
But a rebuttal report does not violate this standard simply because it “contains new
information[.]” GLF Constr. Corp. v. Fedcon Joint Venture, No. 17-cv-1932, 2019 WL 13168545,
at *6 (M.D. Fla. Oct. 16, 2019) (alteration added; citations omitted). 	Ultimately, courts are
“empowered to exercise their discretion and judgment in determining if a rebuttal expert report
addresses the same subject matter as the opposing party’s initial expert report.” 	Healy v. NCL
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(Bahamas) Ltd., No. 23-cv-21306, 2024 WL 4132981, at *6 (S.D. Fla. Aug. 13, 2024) (quotation
marks and citation omitted).
Lott’s Report is proper rebuttal to Friedland’s Report. (See generally Lott’s R.; Friedland’s
R.). As explained, Friedland asserts that the Hotel Collection Mark is not distinctive and does not
qualify for protection because it has not acquired secondary meaning. (See generally Friedland’s
R.). He also maintains that should a factfinder conclude the Hotel Collection Mark is distinctive,
the scope of protection should be narrow because third parties have used the Mark. (See generally
id.). Lott responds point-by-point. (See Lott’s R. 3–30). Naturally, because Friedland analyzes
elements of Plaintiffs’ claims, Lott likewise discusses Plaintiffs’ prima facie case; in other words,
Lott rebuts Friedland’s conclusions about the “same subject matter” Friedland discusses. Fed. R.
Civ. P. 26(a)(2)(D)(ii); (see Lott’s R. 3–30).
True, Lott addresses one issue Friedland does not: she faults Friedland for failing to discuss
“suggestiveness” and implies the Hotel Collection Mark is suggestive rather than merely
descriptive, making it distinctive without a showing of secondary meaning. (Lott’s R. 8–10; see
generally Friedland’s R.); see also Knights Armament Co. v. Optical Sys. Tech., Inc., 654 F.3d
1179, 1188 (11th Cir. 2011) (citation omitted). But this section of Lott’s Report does not “advance
[a] new argument[.]” 	Lebron, 2018 WL 3583002, at *2 (alterations added). 	Lott addresses
suggestiveness to critique Friedland’s failure to do so — and to rebut Friedland’s assertion that the
Hotel Collection Mark is descriptive. (See Lott’s R. 8–10). See, e.g., Uber Promotions, Inc. v.
Uber Techs., Inc., 162 F. Supp. 3d 1253, 1267 (N.D. Fla. 2016) (discussing the difference between
a descriptive mark and a suggestive mark (citation and footnote call number omitted)).6
6 Moreover, whether the Hotel Collection Mark is suggestive is not a truly distinct topic from whether it is
descriptive, as the distinction between the two is “more blurred than it is definite.” Investacorp, Inc. v.
Arabian Inv. Banking Corp. (Investcorp) E.C., 931 F.2d 1519, 1522 (11th Cir. 1991) (footnote call number
omitted).
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In sum, Defendant fails to persuade that any of Plaintiffs’ experts should be precluded from
testifying.
IV. CONCLUSION
Accordingly, it is
ORDERED AND ADJUDGED that Plaintiffs, Aroma360 LLC and Hotel Collection
LLC’s [Daubert] Motion [ECF No. 66] is GRANTED in part and DENIED in part. Defendant,
Scentiment, LLC’s Omnibus Daubert Motion [ECF No. 67] is DENIED.
DONE AND ORDERED in Miami, Florida, this 4th day of December, 2025.
________________________________________
CECILIA M. ALTONAGA
CHIEF UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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