Compass Lexecon Client Neist Media Prevails in Lanham Act Dispute

The Court ruled in favor of Compass Lexecon’s client, Neist Media, in denying a motion for preliminary injunction in a Lanham Act dispute in which the Plaintiff, Alex Hormozi, a well-known entrepreneur, author, and influencer, alleged that Defendants Neist Media, Alex Neist, and Benjamin Read (collectively, "Neist Media"), unlawfully used Mr. Hormozi’s likeness to market its products.

Plaintiff retained an expert to conduct a survey to determine whether consumers in the marketplace for Neist Media’s products were likely to be confused about the source of sponsorship on the product packaging. Plaintiff’s expert conducted a “Squirt” style survey that Plaintiff claimed provided evidence of actual confusion among potential consumers.

Compass Lexecon Executive Vice President Niall MacMenamin was retained by counsel for Neist Media to submit a rebuttal report critiquing the Plaintiff’s survey design and implementation. Mr. MacMenamin stated that the fundamental flaws of Plaintiff’s survey are that it leads the respondents to the Plaintiff’s desired answers and that it does not simulate marketplace conditions. This is because a necessary condition for use of the “Squirt” method is that both the Plaintiff’s and Neist Media’s products or likeness must be present in close proximity in the marketplace. Mr. MacMenamin laid out the “Eveready” format survey in his rebuttal report, which is more appropriate for measuring likelihood of consumer confusion for matters where there is “top of mind” awareness of the Plaintiff like in this matter.

The Court’s ruling was consistent with the opinions of Mr. MacMenamin and found that “Hormozi has not shown a likelihood of consumer confusion.” In accordance with Mr. MacMenamin’s rebuttal report, the Court noted that “…the survey has significant flaws. The placement of the Image and the photographs side-by-side creates a leading bias, and it is not similar to how consumers would experience purchasing nose strips in the actual marketplace.”

Mr. MacMenamin was supported by Vendela Fehrm.

Compass Lexecon worked closely with Terry Newby of Maslon LLP.