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Deere & Co. v. FIMCO Inc. - 260 F. Supp. 3d 830 (W.D. Ky. 2017)


Evidence to prove personal knowledge may consist of the witness's own testimony. Fed. R. Evid. 602. The threshold for Fed. R. Evid. 602 is low, and testimony should not be excluded for lack of personal knowledge unless no reasonable factfinder could believe that the witness had the ability and opportunity to perceive the event that he testifies about. 


Deere has registered trademarks for its green and yellow color scheme for use on tractors and various agricultural equipment. Deere also claims a common law trademark right in this green and yellow color combination. Deere's claim that FIMCO uses a green and yellow color scheme for agricultural equipment, which infringes upon Deere's trademark. FIMCO, in turn, has counterclaimed against Deere, seeking a declaration of non-infringing use. FIMCO seeks to preclude "[a]ny reference to the reason(s) why FAST purportedly chose to use the colors yellow and green on its agricultural equipment. Clay Roll testified that his understanding of FAST's purpose for using green and yellow was "to associate with the quality" of the John Deere brand, and that FAST's founder, Verlyn Fast, told him this "many times." Deere filed a motion in limine seeking to preclude FIMCO from offering into evidence portions of the notes of Deere's expert, William Shanks, 1) as evidence of "what the salespeople Mr. Shanks interviewed said that their customers said or did not say," or 2) "as evidence of those customers' state of mind. Based on this investigation, Shanks opined "that salespeople at dealerships that sell FIMCO's agricultural equipment perceive the green and yellow colors on agricultural equipment as associated with Deere, or at a minimum, recognize or believe that people generally associate such colors with Deere. What Shanks also took notes on but did not include in his report, however, are his conversations with each of the twenty salespersons following their responses to his initial open-ended question in which several salespeople explained that consumers of agricultural products do not confuse John Deere and FIMCO products.


(a) Was Roll’s testimony relevant? (b) Was Shank’s testimony an exception to the hearsay rule?


(a) Yes (b) Yes


(a) the Court agrees with Deere that Roll's testimony about FAST is relevant.  Relevant evidence is evidence that "has any tendency to make a fact more or less probable than it would be without the evidence" and that "is of consequence in determining the action.” As a manufacturer of agricultural sprayers and applicators, FAST is a competitor of FIMCO. Here, Roll's testimony regarding FAST's knowledge of and motive for using a green and yellow color scheme on its agricultural equipment may be probative of FIMCO's motive for using those colors; (b) Plaintiff's motion in limine was denied regarding its investigator's notes of salespersons' out-of-court statements that consumers of agricultural products did not confuse plaintiff's and defendant's products because, under the residual exception to the hearsay rule in Fed. R. Evid. 807, the statements were trustworthy; they could suggest that the hallmark standard for trademark infringement, likelihood of confusion, which was a material fact in the case, was not satisfied; and the administration of justice would be served as the evidence would assist the factfinder in determining the truth regarding likelihood of or actual confusion.

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