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Plaintiff's Response to Motion in Limine to Exclude Evidence Concerning Deaths of Alpacas



Exhibit 6

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-D-329 (CBS) ----------------------------------------------------------------------------------------------------------

CACHE LA POUDRE FEEDS, L.L.C., Plaintiff v. LAND O'LAKES, INC., LAND O' LAKES FARMLAND FEEDS, LLC, AMERICAN PRIDE CO-OP, POUDRE VALLEY COOPERATIVE ASSOCIATION, INC., FRANK BEZDICEK AND ROBERT DeGREGORIO Defendants

---------------------------------------------------------------------------------------------------------PRELIMINARY EXPERT REPORT OF CATE ELSTEN Submitted 6 June 2005

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I.

INTRODUCTION

I have been asked to provide analyses and opinions regarding the determination of damages Cache La Poudre Feeds, L.L.C. ("CLP" or "Plaintiff") may claim if there is a finding of liability against Land O'Lakes, Inc. et al. ("LOL" or "Defendants") for actions as alleged in the Plaintiff's Complaint. This is a preliminary report of my opinions and the bases for those opinions. My report includes additional information required by Federal Rule of Civil Procedure 26(a)(2)(B).

II.

BACKGROUND AND ASSUMPTIONS

The animal feed business may be subdivided into two segments: "commercial" feed and "lifestyle" feed. The commercial segment involves the manufacture and distribution of bulk feed as an essential input for production of either livestock itself (e.g., cattle) or the products of livestock (e.g., milk.) The lifestyle segment involves the manufacture and distribution of feed for animals that are not direct components of the agricultural economy. Purchasers of lifestyle feed include consumers with companion animals such as dogs, cats and horses, hobby farmers1 and those who raise show animals. In both segments, animal feed is generally transported by truck from the mills where it is manufactured to co-ops and dealers who sell it to farmers and other customers.2 Plaintiff CLP has manufactured and sold animal feed through a limited liability corporation in Fort Collins, Colorado since 1984.3 I understand CLP has manufactured and sold products under the trademark Profile® since March 1991.4 The company distributes its animal feed product through a small network of dealers and distributors in Colorado and other Western states, and has recorded sales in at least Colorado, Wyoming, Nebraska, Montana, Kansas, South Dakota, Texas, Arizona and Utah.5 CLP's records permit identification of products sold using the Profile® mark beginning in 1999. From 1999 through 2004, CLP sold approximately $3.1 million of animal feed under the Profile® mark. Defendant LOL is a farmer-owned food and agricultural cooperative with a presence in all fifty of the United States.6 LOL is organized into five major business units: dairy foods, feed, seed, agronomy and layers/eggs. The company's feed segment is organized
Deposition of Marcy Johnson, 31 March 2005, 49:20-50:10 "We deliver our products primarily by truck using independent carriers, supplemented by our own fleet. Deliveries are made directly from our feed mills to delivery locations within each feed mill's geographic area," LOL 10-K, 2004, page 5; see also the photos associated with CLP's product shipments at CLP 0029710 ­ CLP 0029714. 3 Deposition of Ronald Treiber, 11 February 2005, 11:6 ­ 11:12 4 Ibid., 11:3 ­ 11:5 5 Ibid., 19:33 ­ 22:12. Mr. Treiber also believes CLP's Profile® product has been sold through dealers to customers in New Mexico and in Colorado to an individual who may have resold the product in California. I understand CLP also sold its products from its own retail operation in Fort Collins, but ceased these operations in 1999 after the death of owner Mr. Treiber's wife. 6 http://www.landolakesinc.com/investor/overview.asp
2 1

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under a wholly-owned subsidiary, Land O'Lakes Purina Feed, LLC.7 The subsidiary operates a network of feed mills, from which it distributes animal feed product through a network of approximately 1,100 local member cooperatives.8 In its 2004 fiscal year, LOL's feed segment contributed $2.6 billion to the company's total sales of $7.7 billion.9 Defendant Land O' Lakes Farmland Feeds, LLC is the entity now known as Land O'Lakes Purina Feed, LLC. Defendant American Pride Co-op is a Colorado cooperative corporation whose main facility is located in Brighton, Colorado. Defendant Poudre Valley Cooperative Association, Inc. is a Colorado cooperative corporation located in Fort Collins, Colorado. These cooperatives are accused of displaying, offering for sale and selling LOL's accused product in the State of Colorado. Defendant Frank Bezdicek is an individual; he is currently an independent consultant and previously served as LOL's Marketing Communications Manager. Defendant Robert DeGregorio is an individual and was formerly Executive Vice President and Chief Operating Officer for LOL and President of LOL Farmland Feed, LLC. The following is a timeline of key events associated with the parties' dispute over the use of "Profile" as a trademark10: · · March 1991 ­ CLP began selling its feed products with the Profile® trademark. January 2000 ­ CLP's owner and manager Ronald Treiber filed with the U.S. Patent and Trademark Office (USPTO) for federal registration of the Profile® trademark, but allowed the application to become abandoned by not responding to an action. Late Spring 2001 ­ LOL began developing the concept of an "umbrella brand" to consolidate its LOL and Farmland Feed specialty feed products.11 These products were then being sold under approximately 400 different product names and 36 different brand names.12 12 June 2001 ­ Frank Bezdicek of LOL conducted an availability search for the use of "Profile" as a trademark.13 26 March 2002 ­ CLP reapplied to the USPTO, this time with assistance of counsel, for federal registration of its Profile® mark.

·

· ·

On 21 October 2004 "Land O'Lakes Farmland Feed LLC" was renamed "Land O'Lakes Purina Feed LLC"; see LOL's 10-K, 2004, page 21. 8 LOL 10-K, 2004, page 4 9 Ibid., pages 18 & 19 10 For the balance of my report, I will use the word Profile® in italics to denote the CLP trademark and the word Profile without italics to denote LOL's allegedly infringing trademark. 11 Deposition of Marcy Johnson, 31 March 2005, 157:12 ­ 157:14 12 Deposition of Robert M. DeGregorio, 20 May 2005, 16:20 ­ 17:7 13 Deposition of Frank Bezdicek, 10 March 2005, 112:18 ­ 112:25

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· · · · ·

1 April 2002 ­ LOL officially launched its accused Profile brand; some LOL Profile poultry feed sales predated this launch. 4 April 2002 ­ LOL received first notice of trademark conflict when CLP counsel spoke separately by telephone with LOL's marketing and legal departments. 24 May 2002 ­ LOL applied to the USPTO to register "Land O'Lakes Profile" as a trademark.14 5 June 2002 ­ LOL received second notice of trademark conflict when CLP counsel wrote to the LOL legal department. 30 September 2002 ­ LOL received third notice of trademark conflict when the USPTO suspended LOL's application for "Land O'Lakes Profile," citing CLP's application as a bar. March 2003 ­ At least 100 alpacas died in Ohio after reportedly eating LOL Profile feed. Lawsuits were subsequently filed against LOL by several of the alpaca ranchers and are apparently ongoing. 2 June 2003 ­ LOL contacted CLP about a possible "consent" for use of "Profile" as part of "Land O'Lakes Profile." 17 June 2003 ­ LOL received fourth notice of trademark conflict when CLP communicated its refusal to grant LOL's consent request. 12 August 2003 ­ The USPTO awarded CLP the Profile® trademark for animal feed. 2 February 2004 ­ LOL received fifth notice of trademark conflict when the USPTO rejected LOL's application for trademark registration of "Land O' Lakes Profile," citing CLP's registration as a bar.15 23 February 2004 ­ LOL received sixth notice of trademark conflict when CLP filed the current lawsuit. 25 March 2004 ­ LOL received a second letter of suspension from the USPTO.16 1 July 2004 ­ An email from LOL's in-house counsel Peter Janzen to Mr. DeGregorio indicated the idea of abandoning use of the disputed trademark and switching to a replacement was being discussed by at least April 2004.17
14 15

·

· · · ·

·

· ·

CLP 0004388 Deposition of Robert M. DeGregorio, 20 May 2005, Exhibit 229 16 CLP 0004420 17 LOLFF-50362

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· ·

August 2004 ­ LOL initiated plans to re-brand its Profile products as "Lake Country."18 January 2005 ­ LOL launched "Lake Country" lifestyle feeds.

18

Deposition of Robert Bean, Volume 1, 17 March 2005, 32:10-33:24

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III.

OPINIONS TO BE EXPRESSED, WITH THE BASES AND REASONS THEREFOR

I understand that under 15 U.S.C. §1117 the plaintiff in a trademark infringement matter may seek "to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action." I further understand the trier of fact will make a determination of the appropriate nature and quantification of any such awards based on the facts and circumstances of the case. I have considered the record produced in this case to date and otherwise available that may inform a determination of damages. My key observations, conclusions and calculations are as follows. A. Opinion: CLP may be entitled to an accounting of the profits unfairly gained by LOL from its use of the Profile name. LOL's financial records and testimony from LOL personnel indicate LOL sold and/or may be reasonably estimated to have sold at least $81,065,383 in animal feed under the Profile name, generating $30,483,999 in income after ingredient cost. Financial records produced by LOL to date are insufficient to analyze further cost deductions or to calculate them to a reasonable degree of certainty. I understand that under the Lanham Act (15 U.S.C. § 1117), "In assessing profits the plaintiff shall be required to prove defendant's sales only; defendant must prove all elements of cost or deduction claimed." LOL's record of costs presented as deductions from the accused sales is deficient in several respects, as noted in my following discussion. I reserve the right to review and respond to any additional information and any alternative or additional cost deductions or apportionment arguments that may be advanced in the Defendant's expert report. 1. LOL's sales of accused product from 2001 through 31 October 2004 may be calculated based on its documents produced and sales after that date may be reasonably estimated. As part of his deposition, Paul Siler, Controller for LOL's feed division, provided financial reports identifying LOL Profile sales. These reports show such sales commencing in 2001, but Mr. Siler could not specify in which month those first sales were made.19 Because Mr. Siler's deposition was taken in November 2004, the reports he presented show only year-to-date sales through 31 October 2004. Total sales reported through that date were $69,334,553. LOL has not yet updated this information for sales after that time. LOL began a process of discontinuing its use of the Profile name in late 2004, replacing it with the trademark "Lake Country." In deposition,
19

Deposition of Paul Siler, Volume I, 10 November 2004, 22:17 ­ 23:6

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Robert Bean, former LOL Product Manager for pet products, testified this transition involved two separate launch dates. The first was a launch to "dealers and field men" in late November or early December. The second was a launch to plants in January 2005.20 I understand the January 2005 timeframe identifies the official end of LOL's manufacture of Profile feed.21 However, LOL's apparent intent was to continue using whatever Profile supplies (such as packaging) and products (such as promotional merchandise) it had on hand at that time. I understand LOL has made no definitive statement regarding a last shipment date for any of its feed or promotional products bearing the Profile mark. In addition, LOL made no apparent effort to remove any accused product already distributed or sold. As a result, LOL's Profile product has had continued presence in its distribution and retail chain for some undetermined period beyond January 2005.22 In the absence of any updated information from LOL, I have assumed sales continued through at least the first quarter of 2005 at a rate similar to sales prior to that time. As detailed in Exhibit 4, my current calculation of LOL sales related to its Profile products includes reported sales through October 2004 and estimated sales from November 2004 through March 2005, totaling $81,065,383. I understand CLP has requested additional financial statements from LOL, including records of sales under the Profile name after October 2004. I reserve the right to revise my calculation of sales if and as additional financial or other information on continuation or cessation of such sales is produced. 2. LOL's profits on sales made under the Profile name may theoretically be calculated at several decreasing levels, from "income over ingredients" to gross profits, incremental profits and net operating profits. However, the ability to ascertain the nature of specific costs and their relationship (if any) to sales of the accused products and to determine the accuracy of costs as reported by LOL is generally inadequate to produce reasonably reliable calculations based on information produced by LOL to date. Standard accounting profit and loss statements generally calculate profits at several progressive, declining levels as different categories of cost are deducted, beginning with those most closely related to the specific sales in
Deposition of Robert Bean, Volume 1, 17 March 2005, 32:10-33:24 Deposition of Elden Hall, 20 April 2005, 77:5-77:9 and deposition of Keith Alquist II, 15 March 2005, 162:5-163:13 22 Documents presented at the 15 March 2005 deposition of Keith Alquist II, Vice President and Chief Financial Officer of American Pride Co-Op apparently show sales of accused product through 11 March 2005 (81:19 ­ 82:3.) Mr. Alquist further testified he expected to sell all of his remaining LOL Profile products (199:9 ­ 200:19.)
21 20

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question (typically cost of goods sold, including material, labor and manufacturing and distribution overhead) and progressing to those common across multiple product lines or the entire company (typically sales, general and administrative, or "SG&A" costs.) Sales less cost of goods sold is generally identified as "gross profit." Further deduction of SG&A costs incurred in operating the business and assigned or allocated to the sales reported produces what is generally identified as "operating profit." Costs related to treasury activities (such as interest paid and earned), exceptional items (such as gain or loss on sales of assets) and income taxes or credits are typically added to or deducted from operating profit to arrive at net profits. Litigation introduces certain profit calculation concepts not always incorporated in day-to-day corporate accounting. "Incremental profit" is one such concept. Incremental profits result from starting with accused sales and deducting only those costs necessary to realize those sales. Calculations strictly following this model are not typically found in standard corporate profit and loss statements, although in some cases incremental profit may be the same or similar to "contribution margins" or other calculations prepared to assist management in assessing a particular product's or division's incremental contribution to the overall business. As noted, I understand it is CLP's burden to prove only the amount of revenue generated by LOL from sales bearing the Profile trademark. Once the accused revenues have been quantified, the burden of proving costs and advancing apportionment arguments shifts to LOL. I have considered the evidence of cost deductions LOL has produced to date. I understand LOL did not create profit and loss statements for its Profile products in the ordinary course of business.23 However, LOL has produced calculations prepared for this litigation through October 2004 purporting to represent various levels of profit for its Profile sales, including "income over ingredient cost," "gross margin," "pretax earnings" and "net earnings after taxes."24 For the period 2002 through October 2004, LOL purports to have realized profit margins as reported in Table 1, following.25 LOL's Sales and Ingredient Costs for its LOL Profile products appear to have been maintained in the ordinary course of business. LOL statements present several additional categories of costs typically defined as cost of goods sold, including cash discounts, "other cost of goods sold," and
Deposition of Jamie LaRue, 24 March 2005, 83:14 ­ 83:18 "Income over ingredient cost" is revenues less only cost of ingredients and is a measure of profitability LOL identifies as relevant for measuring performance in its feed segment; see, for example, LOLFF-869 and the deposition of Robert M. DeGregorio, 20 May 2005, 109:25 ­ 111:11. 25 CLPFFD 000001
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"manufacturing & distribution expenses." However, these costs all appear to have been allocated from some larger cost pool based on an undisclosed and/or undocumented methodology or based on a claimed "standard" cost without any evidence on the method of developing the standard or variances to standard realized in the actual course of business. All operating expenses appear to be allocated based on the Profile business "as a percentage of" two different larger business units ("LOL Comp/Pet/Horse/Zoo sales" or "total Core Business sales") with the exception of out-of-pocket advertising and promotional costs.26 In summary, the calculations provided by LOL are problematic in that: 1) they appear to understate all levels of profitability for LOL's Profile products, 2) documents otherwise generated in the ordinary course of business that might explain LOL's vaguely presented expense categories have been excerpted and not provided in their entirety and 3) the presentation of LOL's calculations do not conform to any generally accepted accounting standard, rendering objective assessment of, or comparisons to, other industry competitors or standards difficult. While I have addressed these issues specifically below, due to deficiencies in the information produced by LOL at this time I am unable to examine or endorse the accuracy and reasonableness of the cost deductions they present, other than ingredient cost and out-of-pocket advertising and promotion. I have estimated LOL's gross profit and operating profit on sales through March 2005 for illustrative purposes only based on the documents currently available; the results of my calculation are summarized in Table 1. In making its own determination of profit related to its Profile branded products, LOL has in several instances allocated corporate level expenses based on a proportion of Profile sales to either its "species" level revenue or to revenue from its total "Core Business."27 However, several expense categories, particularly those related to manufacturing or production such as "Other Costs of Goods Sold," appear to be unrelated to sales dollar values and would apparently be more reasonably calculated based on volume or tonnage. LOL's methodology for expense allocation appears to consistently understate its profitability on Profile products.28
With respect to advertising and promotion costs, I note my understanding that in Lanham Act cases it is debatable whether or not the defendant should be permitted to deduct costs incurred in promoting the allegedly infringing mark when calculating its profits for purposes of determining a damage award. 27 "Species" is a term LOL uses to identify the four divisions in which Profile was sold (i.e. Horse, Pet, Companion and Zoo.) 28 Based on revenue and tonnage data provided by LOL for its Profile and "Species" products, Profile products appear to generate higher revenue per ton than non-Profile products. As a result, when expenses are allocated based on revenues, premium priced products are allocated a greater proportion of expenses than their lower priced counterparts, whether or not this accurately reflects production economics. In fact, manufacturing and operating expenses generally exhibit a stronger correlation with sales volumes than with sales revenues. An allocation methodology, such as LOL's, which ascribes a disproportionate
26

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Documents that may elucidate the composition of LOL's vaguely described expense categories have been requested but not yet provided. For example, SG&A expenses appear to have been allocated from a "species" profit and loss statement that has not been provided. Without any objective basis for examining the line-item composition of this expense pool, it is not possible for me to assess the reasonableness of LOL's calculation as developed for this litigation. Similarly, "Allocation of Feed Overhead," an additional operating expense category, appears to represent a "catch all" for any and all expenses of LOL's core business which have not otherwise been assigned. There is no record documenting the nature of these expenses, nor is any explanation provided for why they should be included as related to or supportive of LOL's accused sales. Finally, LOL has deducted several expenses not typically deducted in calculating operating profits either in the ordinary course of business or in Lanham Act matters, such as income taxes. The following table shows sales and profit levels reported by LOL along with an extension to include estimated sales after October 2004. Table 1: Sales and Various Profit Levels Reported by LOL for its Profile Product
Reported through October 2004 $69,334,553 $26,513,455 $12,852,715 $2,463,486 Estimated through March 2005 $81,065,383 $30,483,999 $14,648,297 $2,622,828 Reported (Estimated) % of Sales 100% 38.2% (37.6%) 18.5% (18.1%) 3.6% (3.2%)

Sales Income over Ingredient Cost Gross Margin Operating Margin

These calculations are not to be construed as reflecting an opinion on my part that LOL has produced reliable, non-speculative evidence of appropriate cost deductions. I respectfully reserve the right to revisit this issue to accommodate any additional relevant information produced by LOL or experts acting on its behalf. In my opinion, only "income over ingredient cost" can currently be determined to be calculated to a reasonable degree of certainty for purposes of this litigation. B. Opinion: A reasonable royalty based on construction of a hypothetical negotiation between the parties in suit would be approximately 7% of sales.

burden of expense to sales of premium priced product, will result in the understatement of profitability for that product.

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Application of this rate to LOL's actual and reasonably estimated sales through March 2005 would indicate total royalties of $5,674,577. I understand that under the Lanham Act a monetary award may be based on a reasonable royalty. In economic terms, a royalty may be regarded either as a form of profits lost to the plaintiff (income to which the plaintiff was entitled by virtue of its proprietary rights in the trademark) or as a form of disgorgement of the defendant's profits (expense which the defendant should have incurred but avoided, enhancing its profits.) The determination of a reasonable royalty in litigation is generally based on the construction of a hypothetical negotiation between the parties at or around the time infringement began. The hypothetical licensee (the defendant) is assumed to acknowledge the validity of legal protection on the property held by the hypothetical licensor (the plaintiff) and assume its sales will infringe on this protection absent a license. The reasonable royalty analysis focuses on the nature of the property, the market for products employing it and the economic and bargaining positions of both parties. The hypothetical negotiation is generally assumed to occur on the "eve of infringement." In this case, I have assumed a hypothetical negotiation date of approximately April 2002, the time of LOL's official launch of its Profile products. However, I understand courts have recognized the usefulness of permitting some assumption that the two parties in a hypothetical negotiation could have foreseen actual subsequent events, rather than being restricted to information they demonstrably knew at the date of such negotiation. I further understand that although the hypothetical negotiation requires assumption of two willing parties, courts have specifically acknowledged the need to consider whether the licensor is in fact (or may presumed to be) actually willing, in order to avoid the imposition of a compulsory license on a demonstrably unwilling licensor in what one court has described as a "heads-I-win-tails-you-lose" situation. I am not aware of any case law establishing factors that must be considered in constructing a hypothetical licensing negotiation in a Lanham Act case. I have considered the following facts to be relevant based on my prior experience with trademark licensing negotiations in litigation and in the ordinary course of business. 1. CLP has not licensed the Profile® trademark to any party and specifically refused LOL's request for permission to use the mark. I understand CLP has never licensed the Profile® trademark and, as noted in Section II of my report, refused LOL's June 2003 request to consent to use of "Profile" in "Land O'Lakes Profile."

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2.

CLP had established commercial success using the Profile® trademark for several years prior to a hypothetical negotiation date. Although CLP has used the Profile® trademark since 1991, its records permit segregation of these sales from the balance of CLP's sales for only part of that time. From 1999 through 2001, the last full year before a hypothetical negotiation, CLP generated over $1.5 million in sales of its Profile® products. CLP's records show operating profits averaging 8.0% from 1995 through 2001. In the two years prior to LOL's infringement, CLP realized net operating profits of 7.3% and 8.2% of sales.

3.

CLP and LOL clearly offered competitive products intended for the same market and consumer. Notwithstanding differences in sales volumes, CLP's Profile® products and LOL's Profile products were both positioned and competed in the "lifestyle" segment of the animal feed industry. As such, they were generally promoted to the same types of consumers through similar methods, including trade shows, print advertising in niche publications targeting farmers and ranchers29 and sponsorship of clubs and rodeos, where large "Profile" banners and product packaging were routinely displayed.30

4.

The hypothetical license in this case must be assumed to be nonexclusive, as CLP would presumably continue its own use of the Profile® trademark. However, given the competitive relationship of the parties, a reduction in the licensing rate for this factor would be unlikely. Furthermore, LOL could have de facto exclusive use of the mark in some of the United States for some period of time. This condition would represent both opportunity for LOL and risk for CLP. All things being equal, non-exclusive licenses typically bear a relatively lower rate than exclusive licenses. However, this is generally because the licensor wishes to license its property to multiple parties. With respect to trademarks, this often happens when a licensor wishes to license its mark to multiple producers of goods that do not compete with the licensor's own product. This is clearly not the case with a hypothetical license here, as CLP would reasonably perceive a competitive nexus with LOL. Furthermore, given the disparity in size between the parties, CLP would

Deposition of Ronald Treiber, 11 February 2005, 150:22 ­ 151:15 and Deposition of Marcy Johnson, 31 March 2005, 69:22 ­ 70:23; see also LOL 0000622 and LOLFF-49969 ­ LOLFF-49971 30 Deposition of Ronald Treiber, 11 February 2005, 138:10 ­ 138:25, Deposition of Richard Dones, 27 November 2004, 63:12 ­ 65:8 and photos from the National Western Stock Show of varied LOL Profile-emblazoned items at CLPF 030140 ­ CLPF 030153; see also the photos of both LOL and CLP Profile products beside one another at a show at CLP 0004070 ­ CLP 0004073

29

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have assessed the risk that the reputation of the trademark would ultimately be controlled more by the hypothetical licensee (LOL) than by CLP itself. Finally, CLP would consider the limitations or complications a license with LOL would place on its own prospects for future growth and expansion. 5. LOL made a deliberate decision to use the disputed mark rather than available alternatives, despite repeated notice of CLP's objections and rejections by the USPTO of LOL's attempts to register the mark. LOL was notified of CLP's senior use of the Profile® mark just a few days after LOL's official product launch, when its investment in promotion of the mark was relatively minimal and its cost of switching to an alternative mark was at its lowest level. However, LOL persisted in using the mark, despite multiple notices of alleged infringement from CLP and the failure of LOL's attempts at federal trademark registration. Although none of its product lines had been previously sold under Profile or any mark incorporating that word, LOL did not move to switch to another mark until after a second suspension from the USPTO, the filing of this suit and incidents of animal deaths attributed to LOL's Profile feeds. LOL made public claim to both creation and ownership of the Profile brand on the website it mounted to support its marketing effort (www.profilenutrition.com.)31 According to a public archive of prior years' web pages,32 LOL implied long-term association with the Profile name as early as at least 3 June 2002, just two months after its official product launch (emphases added in bold): The Profile Brand was born in the twenty-first Century, but our heritage goes back many generations. Our brand has deep roots and a distinguished bloodline. Its parent, Land O' Lakes Farmland Feed, is an experienced leader in the science of animal nutrition.33 LOL maintained this claim of brand ownership until at least 27 January 2005.34 Similar claims of ownership appeared in print media35 and deposition testimony indicates such claims were made on at least one occasion by a member of LOL's sales force.36
Deposition of Marcy Johnson, 31 March 2005, 95:16 ­ 96:24 http://www.archive.org/web/web.php 33 http://web.archive.org/web/20020603011448/http://profilenutrition.com/ 34 My staff downloaded the then-current version of the profilenutrition.com website on that date. 35 "The Profile brand was developed in the twenty first century, but the heritage goes back many generations. The people who developed the line are people just like you; they were raised on the farm and enjoy working with animals. Its parent, Land O' Lakes Farmland Feeds, is an experienced leader in the science of animal nutrition as well" (CLP 0004078.) 36 Q_Well, you told Dr. Warson that -- that Land O' Lakes had acquired the name Profile. A_That's what I was assuming, that I was told, yeah.
32 31

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LOL still relies on the website www.profilenutrition.com to promote its feed products under the "Lake Country" replacement mark and the search mechanism at that site still generates merchandise "hits" for the term "Profile." The image below of a ball cap was accessed at the site on 25 May 2005; the arrow indicates what appears to be a trademark registration symbol (®) to the right of the LOL Profile logo. In deposition, Frank Bezdicek, the former Marketing Communications Manager at LOL, acknowledged other instances of the LOL Profile logo being labelled with the ® indicia and that any such use was inappropriate.37

Although trademarks used in niche categories for relatively short periods of time are often assumed to be readily replaceable, LOL's course of conduct suggests it perceived some unique value in the Profile mark and was highly reluctant to abandon use of the mark despite the obvious risk of continuing. It appears from deposition testimony that LOL perceived the value of the Profile name in part as stemming from its ability to consolidate many existing and disparate brand names under a common umbrella indicating a consistent source, but without associating that source with the Land O' Lakes brand used on commercial feed and products for

Q_And he was confused about how it worked that -- because he -- because he bought CLP Profile before from Ron Treiber, who was his neighbor, right? A_I assume he did. I don't know. Q_And then you came and you were selling Land O' Lakes Profile, or trying to sell it to him, and he was confused about that, wasn't he? A_Yes. Deposition of Richard Dones, 17 November 2004, 90:14 ­ 90:25; see also references to the conversation with Dr. Warson at CLPF 030983 and to discussions involving Richard Lund at CLP 0004088 37 Deposition of Frank Bezdicek, 10 March 2005, 148:7 ­ 149:17

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human consumption.38 LOL has generally indicated it assigns high value to its trademarks, stating in its 10-K filings with the Securities and Exchange Commission, "[T]rademarks are important to us because brand name recognition is a key factor to our success in marketing and selling our feed products."39 In its public reporting, LOL specifically identified Profile as one of its "strong trademarks."40 6. Both companies used the disputed mark extensively in advertising, promotions and product packaging. The prominence with which both parties promoted the disputed mark indicates it was intended as the essential identifying link between the customer and the product. This link is perhaps most clearly revealed by the product bags themselves - the largest word in each case is "Profile."41 LOL designed its bags so that each panel, including the gusset (the side of the bag) prominently featured the Profile mark.42 Furthermore, both parties designed and distributed branded clothing such as ball caps, jackets, shirts and other items emblazoned with their respective "Profile" logos.43 Display banners and LOL's point-of-purchase displays exhibit "Profile" as the largest word.44 Both parties mounted Internet sites promoting their products, emphasizing "nutrition," featuring their respective "Profile" logos and offering methods for contacting the companies with purchase inquiries.45 Finally, both parties placed the term "Profile" in their promotional web addresses (www.profilenutrition.com for LOL and www.profilefeeds.com for CLP.)
Deposition of Jamie LaRue, 24 March 2005, 127:23 ­ 128:4. Marcy Johnson offered additional testimony on this point: "The Land O'Lakes logo was not on the front of the package intentionally. It is on the back of the bag, and it simply said manufactured -- and the Land O'Lakes logo was not on there at all until after I left when I think they again changed their name. I don't know how many times they have changed their name now;" 88:14 ­ 88:20. 39 LOL 10-K, 2004, page 14 40 "We market our lifestyle animal feed to these customers through the use of our strong trademarks, namely, Profile, Purina Chow, and Checkerboard Nine Square logo." Plaintiff's Third Amended Complaint, 8 October 2004, Exhibit 8 41 See the LOL PowerPoint presentation featuring a variety of LOL Profile product bags at, "The Journey Begins" (LOLFF-41162 ­ LOLFF-41306) and actual bags featured displays at LOL 0000529, LOL 0000544, LOL 0000553, LOL 0000609 ­ LOL 0000613 and CLP 0030146 42 Deposition of Robert Bean, 17 March 2005, 290:14 ­ 291:5 43 As noted elsewhere in this report, images of LOL items bearing the accused LOL Profile logo could still be viewed recently at www.profilenutrition.com; see also the Deposition of Marcy Johnson, 31 March 2005, 64:15 ­ 64:19, LOL Profile merchandise at CLPF 040017, photographs of ball caps and calendar displaying the CLP Profile® logo (no Bates range provided) and the Deposition of Ronald Treiber, 11 February 2005, 136:19 ­ 137:2. 44 See the Deposition of Ronald Treiber, 11 February 2005, 138:10 ­ 138:25, the Deposition of Richard Dones, 27 November 2004, 64:1 ­ 65:8 and photos from the National Western Stock Show of varied LOL Profile emblazoned items at CLPF 030140 ­ CLPF 030153. For LOL point-of-purchase display items, see LOL 0000529, LOL 0000544, LOL 0000553, LOL 0000609 ­ LOL 0000613. 45 See www.profilenutrition.com for LOL's 1-800 telephone number and www.profilefeeds.com for CLP's 1-800 telephone number.
38

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7.

Publicly available licenses between non-competitive parties for trademarks used on packaged food products range from 3 to 20%, with a mean of 6.4% and a median of 5.0%. I have not located any publicly available trademark licenses for use on animal feed. However, as recognized by RMA, animal feed is generally considered part of a larger category that also includes consumer packaged food products.46 Several licenses for the latter category are publicly available. I have reviewed summaries of twelve trademark license agreements between apparently unrelated parties for trademarks to be used on packaged food products. The royalties specified in these licenses range between 3% and 20%, plus upfront lump sums in some cases. This range is consistent with my previous personal experience with licenses of this type. The simple average of these rates is 6.4% and the mean is 5%; see Exhibit 6.1. Furthermore, my analysis shows that the mean and median license rates range from 18% to 23% of similarly computed industry gross margins and exceed similarly computed industry operating margins.

8.

LOL's use of the Profile trademark was associated with negative publicity regarding product safety issues. In late March 2003, initial news reports linked the deaths of approximately 50 alpacas in northern Ohio to LOL Profile alpaca feed.47 A later report from Bloomberg News cited the death of "up to 140 animals."48 Jamie LaRue, LOL's former Director of lifestyle feed, testified in deposition that he understood the deaths were related to contaminated feed.49 I understand LOL has received a variety of complaints regarding links between LOL Profile feeds and animal mortality involving sheep, cattle, dogs, pigs and rabbits.50

RMA (Risk Management Association) Annual Statement Studies are an independent compilation of financial information generally organized by North American Industry Classification (NAICS) and Standard Industrial Classification (SIC) codes. The 2004-2005 RMA includes financial analysis specifically related to businesses included in SIC code 2048 ("Prepared Feed and Feed for Ingredients for Animals and Fowls, Except Dogs and Cats.") The SIC "major group" (i.e. codes having a "20" prefix) comprises entities engaged in the commercialization of "food and kindred products." Not surprisingly, companies within the same SIC major group tend to exhibit comparable financial performance. For example, based on the 45 companies within "Manufacturing ­ Other Animal Food Manufacturing" (including SIC 2048) surveyed by RMA having revenues in excess of $25MM per year, typical gross and operating margins would be 21.5% and 4.9%, respectively. Comparable margins for "Manufacturing ­ Confectionery Manufacturing from Purchased Chocolate" (including SIC 2064 "Candy and Other Confectionery Products" and SIC 2066 "Chocolate and Cocoa Products"), based on the 32 companies surveyed having revenues in excess of $25MM are reported by RMA as being similar - 26.3% and 5.0%, respectively. 47 Plaintiff's Third Amended Complaint, 8 October 2004, Exhibit 7 48 Ibid. 49 Deposition of Jamie LaRue, 24 March 2005, 174:15 ­ 175:7 50 Deposition of Robert DeGregorio, 20 May 2005, 135:21 ­ 143:13, CLP 004095, LOLFF-43241, and Deposition of Elden Hall, 20 April 2005, 58:23 ­ 61:11

46

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The fact that CLP sells no alpaca or llama feed does not appear to have been sufficient to prevent confusion between LOL's Profile and CLP's Profile® products. An e-mail to CLP from Lark Burnham, a Ph.D. in ruminant nutrition, requested the guaranteed analysis and list of ingredients associated with CLP's "Evans alpaca/llama feeds."51 "Dr. Evans" is one of the identifiers LOL used in conjunction with "Profile" to brand its alpacas and llama feed ("Profile Dr. Evans Alpaca Supplement" and "Profile Dr. Evans Llama Diet").52 9. Evidence exists of actual confusion among customers and other parties resulting from LOL's use of the Profile trademark. The evidence produced in this case provides various examples of confusion resulting from the market presence of two "Profile" branded animal feed products. According to CLP documents, the earliest example from summer 2002 involved a CLP dealer in Cheyenne, Wyoming: Someone came into his store looking for the L.O.L. Profile pig feed w/ paylean ­ this customer thought there was only one Profile.53 This same dealer--Casey Eppler--witnessed other examples of consumer confusion regarding Profile® and Profile feeds.54 Other CLP dealers communicated similar experiences to CLP.55 The record provides examples as follows: · · · A CLP customer recommended Profile® by name to his aunt, who spent the next two years purchasing LOL Profile.56 Various instances were reported of customers contacting CLP seeking or referencing LOL products.57 Examples exist of LOL Profile customers contacting CLP for information on how to secure awards from LOL promotional programs or about delays in receiving promised promotional merchandise.58

CLPF 040102. CLP 0004085 also contains a CLP reference to confusion involving "Profile" and llamas. 52 Both "Dr. Evans" products are identified as LOL Profile products at CLPFFD 000129. 53 CLP 0004087 54 See the additional example dated "9-22-03" at CLP 0004087 and dated "11-20-03" and "11-2503" at CLP 0004089 55 See the logs for "Buena Vista, CO" at CLP 0004085 and "Nate Horton" at CLP 0004093 56 CLPF 040107 57 CLPF 040099, CLPF 040100, CLPF 040101, CLPF 040103, CLPF 040104, CLPF 040105, CLPF 040106, CLP 0004083, CLP 0004084, CLP 0004091, CLP 0004092, CLP 0004093, CLP 0004098. 58 CLP 0004080, CLP 0004083, CLP 0004094, CLP 0004096, CLP 0031155, CLP 0031156. One such example (CLPF 040106) comes from a record dated 24 February 2005, a month after LOL's final launch to re-brand its Profile product was planned.

51

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· ·

Examples exist of advertisers confusing LOL Profile and CLP Profile® in advertisements or in their contact with CLP.59 The employee of a mill contracted by CLP to manufacture feed refused to attach tags to the bags identifying it as Profile®, because the mill in question also produced LOL Profile product.60

In summary, CLP would clearly be a highly reluctant licensor in a hypothetical negotiation, consistent with its actual refusal to consent to LOL's use of Profile. This reluctance would be based on reasonably anticipated risks associated with loss of control of the public image of the mark to a junior but much larger user, specific consumer confusion, negative publicity associated with LOL's use of the mark and the likely difficulties such a license would create for CLP's efforts to expand its own sales coverage in the future. Exhibit 6.1 shows that the median rate shown in publicly available licenses between willing, non-competitive parties was approximately 17.9% of median typical gross margins for associated industries. RMA reports a typical gross margin of 21.5 % for the category represented by the relevant SIC code in this case. Applying the ratio indicated by publicly available licenses to this gross margin would imply a license rate of 3.85% of sales. However, given the facts and circumstances discussed above, CLP would reasonably demand a significant premium for a hypothetical license to LOL. A rate of 7% would be slightly less than twice the formula rate and approximately one-third of typical industry profits, but still within the range of rates indicated by publicly available licenses. In my opinion, a rate of 7% of sales would be appropriate in this case.

C.

Opinion: CLP may be reasonably estimated to have lost profits of at least $176,728 from 2002 (the year of LOL's official Profile launch) through 2004. As LOL's accused product has continued in the market past that date, CLP's losses may reasonably be anticipated to continue, but losses for 2005 cannot be calculated at this time. CLP's total sales grew at an average annual rate of 17.4% from 1991 through 1998. However, this included CLP's retail sales operations, which were discontinued after the death of the business manager, Mr. Treiber's wife, in 1998. CLP's Profile sales grew at a more modest annual average of 6.2% from 1999 through 2001, the three years before LOL's alleged infringement began. CLP's operating profits were 7.3% of sales in 2000 and 8.2% of sales in 2001.

CLP was contacted by a marketing department seeking the LOL "Profile" logo (see CLP 0004086.) Oasis Market Feed & Supply, a distributor of CLP Profile®, ran an ad in Wyoming Livestock Roundup that inadvertently used LOL's "Profile" logo instead of CLP's (CLP 0004081 ­ CLP 004082 & CLP 0004089). See also CLP 004090, CLP 0004093 and CLP 0004099. 60 See CLP 0004086 and the deposition of David O. Sparks, 3 May 2005, 33:24 ­ 35:17

59

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After LOL's alleged infringement began, CLP's sales dropped below existing levels, decreasing from 2001 and 2002, staying at the lower level in 2003 and recovering only in 2004 when CLP commenced expenditures to address LOL's actions (see my report section III.D., following.) However, the sales gained from remediation efforts did not outweigh associated costs. CLP's operating profit dropped from 8.2% in 2001 to 1.4% in 2002, 0.5% in 2003 and a loss of 8.8% in 2004, as management resources and attention were diverted by LOL's actions. The total difference between CLP's actual operating profits in 2002-2004 and those that would have been expected based on operations in 2000-2001 is calculated at $176,728; see Exhibit 5.1. D. Opinion: CLP may be entitled to compensation for actual and anticipated spending to remediate the misimpression and/or confusion caused by LOL's use of the Profile name and restore the value of CLP's Profile® mark. CLP's actual spending to date for such efforts through the end of 2004 was $13,292. CLP's prospective spending may be informed by LOL's own spending in promoting the accused product. The out-of-pocket portion of such advertising and promotional spending reported by LOL through October 2004 was $2,797,953. The total costs of LOL's promotion of products bearing the accused mark cannot be determined based on LOL's current production, but may be estimated if no further detail from LOL is forthcoming. I understand the courts have sometimes awarded plaintiffs in trademark cases an amount to compensate for actual and reasonably anticipated spending to remediate the value of the mark lost due to the infringer's actions. In this case, CLP spent $13,292 on public relations in calendar year 2004 for such efforts. CLP's financial records indicate this was the first year such an item appeared on the company's books and I understand the amount was spent solely to address LOL's use of the Profile name. I further understand an award of prospective amounts for remediation may be informed by the defendant's spending in promoting products with the accused mark. LOL's records indicate it spent a total of $2,797,953 through October 2004 on advertising and promotion of its Profile products. However, I understand this total represents only the out-of-pocket costs incurred by LOL. Additional relevant costs, including but not limited to items such as salaries and benefits for in-house staff, mailing costs and costs associated with packaging (which is an important element of point-of-purchase advertising for the products in question), cannot be determined based on the highly summary information produced by LOL to date. If no further information is forthcoming from LOL, I reserve the right to make reasonable estimates of additional advertising and promotional costs that may be assumed.

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E.

I will provide calculations of pre- and post judgment interest if and as requested or required. I understand the Court will typically determine the rate and method for calculating prejudgment interest when such interest is awarded in a Lanham Act case. I may offer opinions on the economic justification for a proposed rate or compute interest amounts based on an assumed rate and methodology if requested.

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IV.

DATA AND OTHER INFORMATION CONSIDERED IN FORMING THESE OPINIONS

A list of the documents provided from the discovery in this case is provided as Exhibit 1.1 in the Appendix to this report.

V.

EXHIBITS TO BE USED AS A SUMMARY OF SUPPORT FOR MY OPINIONS

Exhibits currently used as a summary of my opinions are included in the Appendix to this report. These exhibits do not include copies of original source documents produced by the parties to this litigation or demonstrative exhibits that may be used at trial. I may supplement or amend these exhibits to the extent additional documents, exhibits or other materials are produced. Additional demonstrative exhibits may also be prepared.

VI.

QUALIFICATIONS INCLUDING PUBLICATIONS AND TESTIMONY

I will serve as testifying expert on this case, if required. I am a Managing Director61 for I|C|M|B Ocean Tomo, a firm that provides financing, asset and risk management, merger and acquisition consulting, expert services in litigation and valuation of intellectual capital. I have been a consultant on intellectual property and corporate finance matters since 1990. Prior to its acquisition by I|C|M|B, I served as the Principal in charge of the Intellectual Property and Dispute Services Practice of Tait Advisory Services LLC. Until November 1991 I was a Partner for PricewaterhouseCoopers, L.L.P., for whom I acted as national director of copyright, trademark and other Lanham Act matters. Before 1990 I had over eleven years of industry experience in financial, marketing and accounting management for entertainment, retail and consumer products companies. My positions included Chief Financial Officer for Cleveland's Playhouse Square Center, Senior Corporate Sales and Marketing Analyst for Dayton Hudson Corporation's Target Stores Division, Manager of Financial and Strategic Planning for Aveda Corporation and Chief Operating Officer for Sign Consultants, Inc. I am a Certified Management Accountant. I am also a member of the Licensing Executives Society and the International Trademark Association, for whom I serve on the editorial board of The Trademark Reporter. I am a past member of the Board of Governors for the Brand Name Education Foundation and a current member of the American Marketing Association. I hold a Bachelor of Arts degree from Oberlin College and a Master of Arts degree in business from the University of Wisconsin-Madison. My professional publications within the past ten years include the following:
Managing Director is the top professional classification at I|C|M|B and is analogous in terms of experience and responsibility to a partner in a professional practice partnership.
61

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My professional publications within the past ten years include the following: "Valuing Intellectual Property Rights in Litigation," Minnesota Institute of Legal Education, 1994. "Do Licensing Negotiators Leave Money on the Table?" Minnesota Institute of Legal Education, 1996. "Valuation of Intellectual Property," Tennessee Bar Association, 1997. "False Advertising Damages: Highlights of the Past Twenty Years and the Current Implications for Developing and Rebutting Damages Claims," Coopers & Lybrand L.L.P. Intellectual Property News, 1997. Expanded text published by the Minnesota Institute of Legal Education, 1998. "Trademark Litigation: Thunder on the Horizon?" Minnesota Institute of Legal Education, 1999 and 2001. "Establishing Intellectual Property Values," E-Coverage Guide, The National Underwriter Co., Leo L. Clarke and Martin C. Loesch, editors, 2000. S. Michael Markman, co-author. "Damage Issues of Trademark, Trade Secret, False Advertising and Copyright Cases," Chapter 21, Litigation Services Handbook: The Role of the Financial Expert, Third Edition, John Wiley & Sons, Inc., Roman L. Weil, Michael J. Wagner and Peter B. Frank, editors, 2001. My past testimony in litigation is as follows: Applied Medical Resources Corporation v. Ethicon Endo-Surgery, Inc., Federal Court, Central District of California. Mylan Pharmaceuticals Inc. v. The Procter & Gamble Company, Federal Court, Southern District of New York S&M NuTec, L.L.C. v. T.F.H. Publications, Inc., Federal Court, Western District of Missouri The Nautilus Group, Inc. v. ICON Health & Fitness, Inc., Federal Court, Western District of Washington Hi-Shear Technology Corporation v. United Space Alliance LLC and USBI Co., Circuit Court, Brevard County Florida Boston Scientific Corporation and Target Therapeutics, Inc. v. Cordis Corporation, Federal Court, Northern District of California Schwan's IP, LLC and Schwan's Consumer Brands North America, Inc. v. Kraft Pizza Company, Federal Court, Minnesota ICON Health & Fitness, Inc. v. The Nautilus Group, Inc. fka, Direct Focus Inc. and Nautilus/Schwinn Fitness Group, Inc., Federal Court, Western District of Washington AT&T v. Microsoft Corporation, Federal Court, Southern District of New York Mastercard Int'l, Inc. v. First National Bank of Omaha, Federal Court, Southern District of New York

Greenlight Financial Services, Inc. v. Hartford Casualty Insurance Company, Federal Court, Central District of California

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GFI America, Inc. v. Tecumseh Poultry LLC, Federal Court, Minnesota Knot Just Beads v. Knot Just Beads, Inc., District Court, Alabama Imagexpo L.L.C. v. Microsoft Corporation, Federal Court, Eastern District of Virginia On-Line Technologies, Inc. v. Perkin-Elmer Corporation et al., Federal Court, District of Connecticut ATC Distribution Group, Inc. v. WITT et al., Federal Court, Western District of Kentucky Gold Banc Corporation, Inc. v. Credit Union National Association, Inc., Federal Court, District of Kansas A&A Mechanical, Inc. v. Thomas & Betts, Federal Court, Western District of Kentucky General Data Company Inc. v. Solvay Paperboard Company, L.L.C., Federal Court, Southern District of Ohio, Western Division We Media, Inc. v. Cablevision Systems Corp. et al., Federal Court, Southern District of New York Vicki D. Smith v. Mather Hamilton & Co., et al., Circuit Court, Jefferson County, Kentucky Halston LLC v. HF6, Inc. and Heller Financial, Inc., Federal Court, Southern District of New York Thomas Horn et al. v. Robert B. McQueen et al., Federal Court, Western District of Kentucky Luigino's, Inc. v. Robert Peterson and IBP, Inc., Federal Court, District of Minnesota Heidi Ott A.G. and Heidi Ott v. Target Corporation, et al. , Federal Court, District of Minnesota Monsanto Company v. Pioneer Hi-Bred International, Inc., Federal Court, Eastern District of Missouri Simon Property Group, LP v. mySimon, Inc., Federal Court, Southern District of Indiana Pioneer Hi-Bred International, Inc. v. Monsanto Company, Federal Court, Eastern District of Missouri Scott Schroering et al. v. KFS et al., Jefferson County Circuit Court, Kentucky Darrel Lemon v. Prince Rogers Nelson, et al., Federal Court, Western District of Washington Wrench LLC et al. v. Taco Bell Corp, Federal Court, Western District of Michigan Ferdinand Picket v. Prince Rogers Nelson , Federal Court, Northern District of Illinois Oreck Corporation v. Wal-Mart Stores, Inc. , Federal Court, Eastern District of Louisiana Conco, Inc. v. General Dynamics Ordnance Systems, Inc. and Lockheed Martin

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APPENDIX
EXHIBITS INCLUDING DOCUMENTS CONSIDERED

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Cache La Poudre Feeds, LLC v. Land O' Lakes, Inc. et al. DOCUMENT INDEX EXHIBIT 1.1

Document Description

Bates Range Beginning Ending CLPFFD 000002 CLPFFD 000010 CLPFFD 000014 CLPFFD 000043 CLPFFD 000078 CLPFFD 000103 CLPFFD 000128 CLPFFD 000138 CLPFFD 000146 CLPFFD 000147 CLPFFD 000148 CLPFFD 000199 CLPFFD 000408 CLPFFD 000587 CLP 0000462 CLP 0000946 CLP 0003966 CLP 0004075 CLP 0004079 CLP 0004099 CLP 0004154 CLP 0004205 CLP 0004263 CLP 0004265 CLP 0004286 CLP 0004289 CLP 0004290 CLP 0004291 CLP 0004330 CLP 0004335 CLP 0004375 CLP 0004380 CLP 0004426 CLP 0004426 CLP 0004471 CLP 0004484 CLP 0004485 CLP 0020059 CLP 0028645 CLP 0029245 CLP 0029265 CLP 0029714 CLP 0029843 CLP 0029897 CLP 0030146

LOL Profile Proforma P&L (2002 - October 2004) & Supporting Analysis for OCGS, Operating Expense LOL "All Expenses," "OCGS," Total "Species" Tons, Gross Margin & Net Sales (2001 - October 2004) LOL Profile Marketing Totals Invoices and Summary Sheet for Work Performed for LOL by Monaghan & Company Invoices and Summary Sheet for Work Performed for LOL by Creative Source Group LOL Profile Product Sales/Ingredient Cost/Std Mfg Costs by "Species" (2001 - 2004 October) LOL Profile Sales/Ingredient Cost/Std Mfg Costs by Brand Label (2001 - October 2004 ) LOL Profile Sales/Ingredient Cost/Std Mfg Costs for Colorado by Brand Label (2001 - October 2004 ) LOLFF, LLC Consolidated Summary Statements of Operation (2001 - October 2004) Consolidated Operating Statements, LOL Feed, 2000 Consolidated Balance Sheet, LOLFF LLC, September 2004 Form 10-Q for the Quarterly Period ending June 30, 2004 LOL Annual Report Filing with the SEC for Fiscal Year ending December 31, 2002 LOL Annual Report Filing with the SEC for Fiscal Year ending December 31, 2003 Profit/Loss Statement, October 1991 CLP July 1992 Financial Report (Profit/Loss, Expenses, Inventory Sales) Profile Showfeeds "Product Description Guide" Photographs of both CLP and LOL Profile Products loaded on Trucks (Summer 2003 Notation) Working for Farmers' Success Newsletter Excerpt February 2003 Telephone Notes, eMails, and Advertisements indicating Consumer Confusion Profile Showfeeds, Profile Showpig Feeding Program, contains showfeed descriptions Information from profilenutrition.com - 4/25/2002 Correspondence from Santangelo Law Offices CLP Profile Trademark Document from USPTO USPTO Search for "Profile"- 6/17/2003 Original CLP Profile Application Search for "Profile" - 6/22/00 Notice of Abandonment 21/24/2000 - CLP Profile CLP Profile Application CLP Trademark Communication with the State of Colorado CLP Trademark Communication with the State of Colorado Bioglan Profile USPTO Information USPTO File for Land O'Lakes Profile Filing LOL Profile USPTO Application Documents Various News Reports about CLP Suit/LOL Press releases/FDA Warning Letter LOL Profile news articles Letter regarding LOL Profile Dog Food Cache La Poudre Feeds Profit & Loss, January through December 2002 Internal CLP eMails regarding Message Points Cache La Poudre Profile Labels CLP email from 4H dated 30 October 1998 Photographs of both CLP and LOL Profile Products loaded on Trucks CLP List of "Profile Fed Champions" Letter to Ron Treiber from Brook Sanders, regarding Sales Representative Agreement Photographs - Both LOL & CLP Product Bags

CLPFFD 000001 CLPFFD 000003 CLPFFD 000011 CLPFFD 000015 CLPFFD 000055 CLPFFD 000079 CLPFFD 000104 CLPFFD 000129 CLPFFD 000139 CLPFFD 000147 CLPFFD 000148 CLPFFD 000149 CLPFFD 000200 CLPFFD 000409 CLP 0000419 CLP 0000887 CLP 0003955 CLP 0004066 CLP 0004076 CLP 0004080 CLP 0004123 CLP 0004189 CLP 0004254 CLP 0004264 CLP 0004284 CLP 0004287 CLP 0004290 CLP 0004291 CLP 0004325 CLP 0004331 CLP 0004362 CLP 0004376 CLP 0004388 CLP 0004391 CLP 0004427 CLP 0004472 CLP 0004485 CLP 0020037 CLP 0028634 CLP 0029241 CLP 0029264 CLP 0029710 CLP 0029841 CLP 0029885 CLP 0030145

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Cache La Poudre Feeds, LLC v. Land O' Lakes, Inc. et al. DOCUMENT INDEX EXHIBIT 1.1

Document Description

Bates Range Beginning Ending CLP 0030157 CLP 0031156 CLP 0031233 CLP 0030022 CLP 0040018 CLPF 030022 CLPF 030042 CLPF 030051 CLPF 030084 CLPF 030122 CLPF 030139 CLPF 030134 CLPF 030155 CLPF 030153 CLPF 030162 CLPF 030165 CLPF 030167 CLPF 030446 CLPF 030696 CLPF 030975 CLPF 030979 CLPF 030981 CLPF 030983 CLPF 030991 CLPF 034005 CLPF 034046 CLPF 035676 CLPF 040001 CLPF 040020 CLPF 040080 CLPF 040098 CLPF 040107 CLPF 040121 LOLFF-5 LOLFF-9 LOLFF-12 LOLFF-13 LOLFF-14 LOLFF-52 LOLFF-53 LOLFF-58 LOLFF-90 LOLFF-92 LOLFF-115

Photograph - CLP Profile Horse Feed Product Bag eMails Indicating Consumer Confusion Morgan Stanley Fixed Income Research Report - 12 December 2003 Advertisement for name change from Profile to Honor - "New name. Same Superior Products." Promotional material featuring LOL Profile logos (e.g., shirts, jackets, caps, mug, calculator) Announcement regarding name-change to "Honor" CLP Trademark Coexistence Documents Santangelo Communication with USPTO Regarding Opposition Extension Santangelo Communication with Synbiotics Corporation and Supporting Information on Synbiotics ProFILE for Windows Reference Manual Santangelo Communication with Synbiotics Corporation and Coexistence Agreement ePreview news article announcing LOL Profile - 5/13/2002 Photos of Profile Showfeeds in barns, at shows, banners, store displays B&W Image Reproductions from National Western Stock Show CLP Profit & Loss Detail, January 1998 through December 2002 CLP Vendor Quick Report, 1995-2004 CLP Profit & Loss January through December 2004 Price List for Profile products, March 22, 2004 CLP Profile Product Registration Documents with State of Colorado - 2/18/94 Santangelo Law Offices Communication with USPTO regarding LOL Profile Application - March 19, 2004 Breeders' Forum Discussions - Varied Email from [email protected] to [email protected], regarding Information on Profile Supplement to Interrogatory No. 15 Regarding Incidences of Consumer Confusion Coexistence eMails Regarding Synbiotics Letter from "The Fence Post" to Ron Treiber regarding subscriptions in all 50 states CLP ad in "The Fence Post" CLP ad in "The Fence Post" Registration from InterNIC for profilefeeds.com 2005 LOL Annual Meeting Announcement & Coverage Morgan Stanley Fixed Income Research Report - 12 December 2003 Breeders' Forum Discussions - Varied eMails and Declarations Indicating Consumer Confusion CLP Profile Sales, Tonnage and Gross Profit information by state, 1999-2004 LOL Communication With Law Offices of Garbor L. Szekeres regarding Profile