Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04 - CV- 0329 - WYD - CBS CACHE LA POUDRE FEEDS, LLC, a Colorado limited liability company, Plaintiff, v. LAND O' LAKES, INC., a Minnesota corporation; LAND O' LAKES FARMLAND FEED, LLC, a Minnesota limited liability company; AMERICAN PRIDE CO-OP, a Colorado cooperative corporation; POUDRE VALLEY COOPERATIVE ASSOCIATION, INC., a Colorado cooperative corporation; FRANK BEZDICEK, individually, and in his official capacity as Director of Marketing, Land O' Lakes, Inc.; ROBERT DEGREGORIO, individually, and in his official capacity as President, Land O' Lakes Farmland Feed, LLC; and As yet unidentified entities and individuals participating in concert with the aforenamed defendants, Defendants. RESPONSE TO MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING DEATHS OF ALPACAS


Plaintiff Cache La Poudre Feeds, LLC ("Treiber") by and through its counsel, Santangelo Law Offices, P.C. and Thomas R. French, P.C., responds to the Defendants' Motion in Limine to Exclude Evidence Concerning Deaths of Alpacas as follows: Exclusion is an "extraordinary remedy to be used sparingly." K-B Trucking Co. v. Riss
Int'l. Corp., 763 F.2d 1148, 1155 (10th Cir. 1985). In this instance, the Defendants ("LOL") seek to

have excluded from trial significant evidence concerning LOL's actions which caused a special type of damage to the goodwill associated with the Profile mark. From Treiber's perspective, this case can be understood very easily:
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1 ­ 2 ­ 3 ­

LOL took Treiber's trademark. LOL knew they were infringing another's trademark rights. Then LOL did not just create confusion, it overtly damaged the brand's goodwill.

4 ­

Now LOL wants to avoid the costs of the damage it caused and keep the money it made using Treiber's mark.

The alpaca deaths can initially be viewed as pertaining directly to the third item ­ the fact that LOL overtly damaged the goodwill associated with Treiber's Profile mark. In fact, this is but one (#8) of 22 different aspects to which the alpaca evidence is relevant. As the following table details, the alpaca evidence has 22 separate and independent grounds on which it is both relevant and important in this case. Purposes and Relevancy of Alpaca Evidence 1 2 3 4 5 6 7 8 9 To show the Fact of Damage and the need for Corrective Advertising by Treiber To show the Amount of Corrective Advertising Required To Establish the Existence of Trademark Disparagement To show the Damage caused through Trademark Disparagement To show the Existence of Damage to Trademark Goodwill As Evidence establishing the Nature of LOL's Harm to Treiber's Profile mark As Information necessary to comprehend and appreciate the Geographic Extent of LOL's Harm to Treiber's Profile Goodwill To show the Atypical Character and Special Nature of Trademark Damage in this case To show Facts Unequivocally Demonstrating the Importance of having the Exclusive Ability to Control the Quality and Goodwill associated with the Trademark To Establish The Non-Descriptive nature of the term "Profile" & legal status as a trademark To establish Reasons and the full nature of why LOL Changed the Name of its Feed and wanted to get rid of the mark, in the defense of the defamation counterclaim, in defense of the trademark counterclaim, and in support of Treiber's affirmative claims and damage requests
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To establish a Causal Link between Infringement of the Mark and requested Damages As information explaining and giving context to instances of Actual Confusion evidenced over alpaca feed To establish activities tending to show intent, plan, knowledge, design, absence of mistake, and absence of accident or routine practice of an organization relative to willingness to harm other's in seeking profits and the strategy of putting the pursuit of profits before any obligation to avoid harming others (FRE's 404 & 406) To establish activities tending to show intent, plan, knowledge, design, absence of mistake, and absence of accident or routine practice of an organization relative to a strategy of relying on the inability of others to afford the costs of enforcing their rights as a tactic to avoid the consequences of hurtful business actions, and a strategy of cost attrition in litigation (FRE's 404 & 406) To establish activities tending to show intent, plan, knowledge, design, absence of mistake, and absence of accident or routine practice of an organization to employ the tactic of denying wrongdoing even in spite of simultaneous admissions of liability (FRE's 404 & 406) To establish activities tending to show intent, plan, knowledge, design, absence of mistake, and absence of accident or routine practice of an organization relative to tactic of fabricating, posing, and/or pursuing non-genuine defenses in instances of defending against damage caused by business activities as related to the advice of counsel, trademark, and defamation defenses and counterclaims posed (FRE's 404 & 406) As a necessary factual context for the expert opinion of Cate Elsten regarding nature and extent of harm and the need for and amount of corrective advertising necessary in this matter As a necessary factual context for the expert opinion of Cate Elsten regarding the impropriety of utilizing a ¼ FTC rule in this instance As an integral part of the total picture of what happened to the Profile mark and the consequences LOL caused by infringing the Profile mark in an intentional and bad faith context As proof of egregious circumstances relative to enhanced, exemplary, and other damages As evidence of the consequences caused by LOL's willful and/or bad faith decision to continue use of Treiber's Profile mark in spite of having been told not to use it, and in spite of having received multiple indications from differing persons and governmental entities not to use the mark Of course, each of these 22 aspects of relevance is presented as a separate and

independent reason the evidence should not be excluded. The evidence is important both legally and factually. It also appears to distinguish this case from almost every other reported trademark case. Typical trademark infringement actions involve an infringer using a mark with damage
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occurring by virtue of the confusion caused. Unlike these typical trademark infringements, however, in this case LOL did not just `merely' deprive Treiber of the exclusive right to use and did not `merely' cause confusion. LOL actually acted to destroy some of the trademark's hard earned goodwill for Treiber and even for themselves ­ they overtly harmed the mark itself! To propose an analogy, this evidence is as relevant as evidence of damage caused when a person takes a car and wrecks it before being forced to return it. LOL did not just cause trademark

confusion, it actually harmed the goodwill that existed in that mark by selling Profile feed that killed the very animals it was supposed to nourish. Complaints were received that LOL killed 15 different species of animals with their infringing Profile feed. One of the most publicized negative impressions was the deaths LOL caused of alpacas. Yet this is the very evidence that LOL seeks to exclude. Unlike the other species of animals (so far), LOL has even formally and before a Court admitted that the alpaca deaths were its fault. It is this evidence that is

particularly relevant to how damaged the Profile goodwill was and is, because in the words of LOL's own Claims Manager, news of the alpaca deaths "spread like wildfire all over the country." See Exhibit 1, email from Steve Brown to numerous members of LOL's corporate feed plants. The particular actions and communications that the marketplace and consumers were subjected to relative to the Profile mark are very significant. The nature and captivating character of these marketplace communications is critical to understanding how and why it is no exaggeration that this harm is nationwide. For example, one consumer voiced concerns that LOL's denial and other tactics were causing expanded harm stating: "This story has ventured far beyond the borders of Ohio and is now being repeated throughout the U.S. and other parts of the world via the internet." See Email received by LOL's "Ask An Expert" website, attached as Exhibit 2.

LOL's own trademark expert has highlighted the relevancy of such evidence.
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responding to a reversed hypothetical, LOL's own expert admitted: "If you're asking me before April of '02, CLP's feed had been killing animals, the answer is yes, it would have reduced the value of CLP's trademark probably ­ in a meaningful way." Excerpt of Deposition of Weston Anson, attached as Exhibit 3. Relevant to the nature (not amount) of such damage, LOL's trademark expert even explained how in one hypothetical, a feed killing its consumers can cause a huge loss overnight, stating:

That's incorrect. If tomorrow one of their chickens kills 50 children in a school because it had ptomaine poisoning, the market capitalization of Gold Kist might fall to 500 million. Their tangible assets would still be worth 885, but their intangible assets would be worth a negative $335 million. And it is possible for intangible assets to have negative value. Q So the instance that you said, one of their things kills 50 children. That -- an instance where their food killed something -- kill people, would very much impact the value of the company. A Yes. Q It would very much impact the value of their intangible assets. A Yes. Q Overnight. A Uh-huh. Q What was worth $184 million might be worth a negative $335 million. A Yes. Q So there might be -- from that example, overnight, you'd have a loss of $500 million to those intangible assets. A Possible. Obviously, I'm using the example in an exaggerated fashion in order to make the point. Excerpt of Deposition of Weston Anson, attached as Exhibit 4. Such statements by LOL's own expert seems to make the significance of the evidence most obvious ­ in a situation where animals are killed, the nature and extent of LOL's harm to the Profile goodwill (items #5, #6, and #8 in the table) are significantly relevant. Perhaps predictably, this is precisely the evidence that LOL hopes to exclude from the jury's consideration. LOL hopes to minimize the perception of the harm it caused, however, the jury is entitled to understand the full extent of how LOL's intentional, bad faith, continued infringement

A



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damaged Treiber's Profile trademark ­ damage that occurred after LOL was told explicitly and repeatedly not to use Treiber's Profile mark but did so anyway. The facts regarding the full nature of the harm that LOL caused to the goodwill of Treiber's Profile mark, and the communications in the marketplace that consumers are subjected to are hugely significant to this case. They seem to make this case unlike any other reported trademark infringement case. They are critical and without them a finder of fact cannot

appreciate (among the other aspects listed) the nature and extent of harm that Treiber's Profile mark has been subjected to. As this Court is no doubt well aware, the trial judge has the responsibility of giving evidence "its maximum reasonable probative force and its minimum reasonable prejudicial value." Deters v. Equifax Credit Info. Serv., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000) (other citations omitted). As Fed. R. Evid. 401 establishes, relevant evidence is any evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Except as otherwise provided, all relevant evidence is admissible. In this instance, LOL seeks to have evidence regarding the deaths of the alpacas excluded. Exclusion would significantly harm a presentation of the true state of the facts in Treiber's case and the true state of the Profile mark because the alpaca situation was especially damaging to the Profile mark's goodwill. Of course, LOL is worried that a jury might find the full state of the situation they created, after they were repeatedly told not to use Treiber's mark, unfavorable. However, the fact that the evidence is striking or even strongly adverse to LOL's desired position is not a ground for having it excluded. As courts have reiterated over and over, the fact that evidence is damaging is not the same as it being unfairly prejudicial. The mere adverse character of



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testimony does not make it unfairly prejudicial, the prejudice must be unfair. Citing the Tenth Circuit decision in Deters, one court eloquently stated: "As has been stated many times, Rule 403 does not protect a party from all prejudice, only unfair prejudice." Deters v. Equifax Credit Information Services, Inc., 202 F.3d 1262, 1274 (10th Cir. 2000). "Evidence is not unfairly prejudicial simply because it is damaging to an opponent's case. Rather, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir. 1991) (quoting Fed. R. Evid. 403 advisory committee's note) (citations omitted). U.S. v. Cooper, 286 F.Supp. 2d 1283, 1290 (D.Kan. 2003). Indeed, "[m]ost evidence may lead to prejudicial conclusions, but Rule 403 prohibits only 'unfair' prejudice." Bishop v. Gen. Motors Corp., 1995 U.S. Dist. LEXIS 22166, *14 (E.D. Okla. 1995), citing U.S. v. Williams, 816 F.2d 1527, 1532 (11th Cir. 1987). Analysis of the extraordinary remedy of exclusion begins not with how adverse the evidence is, but rather, with whether it would cause decision making on an improper basis. The Court can easily provide a limiting instruction. The above table sets out 22 separate and independent aspects to which the alpaca deaths are relevant. consideration to each of these aspects. An instruction could limit

What would be improper, however, would be the

exclusion that LOL desires to eliminate the jury's understanding of the truth of the damage LOL caused to the Profile goodwill and for which LOL is accountable. This damage is critical to Treiber's case. Even summaries would not be appropriate, for justice cannot be served unless the jury can understand what truly happened to the Profile goodwill as a result of LOL's wrongdoing. How else could a jury determine what would be appropriate corrective advertising? How else could a jury determine what damages to award? The jury needs to be able to

appreciate just how it could be true that such harm could happen overnight and could "spread like wildfire all over the country" and could have "ventured far beyond the borders of Ohio and is now being repeated throughout the U.S." Without the facts, cold and lifeless statements
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cannot begin to explain the unusual harm LOL caused to the Profile brand. Overall, trial courts have an obligation to permit evidence to have its maximum probative force while considering the need to minimize any unfair prejudice. See, Deters, supra at 1274. As
explained in Bishop at *14, the favored method of receiving such testimony is by obtaining it from

those familiar with the acts and by receiving the live testimony of those personally involved. Bishop citing Johnson v. Colt Industries Operating Corp., 797 F.2d 1530, 1534 n. 4 (10th Cir. 1986). Further, as courts have acknowledged, most evidence may lead to prejudicial

conclusions, but Rule 403 prohibits only 'unfair' prejudice. See Bishop at 14, citing United States v. Williams, 816 F.2d 1527, 1532 (11th Cir. 1987). In the present situation, the impressions and actual documents communicated to consumers in the marketplace are essential to understanding the damage that LOL caused to the Profile goodwill. It is entirely proper to receive testimony describing what was communicated by those involved to various consumers relative to LOL's infringing Profile alpaca feed; this is one of the things that was communicated to consumers relative to Profile's goodwill. It is entirely proper to receive and view documents containing statements, web pages, pictures, and videos that have been communicated to the marketplace relative to LOL's infringing Profile alpaca feed; this is what the marketplace saw that caused the damage. It is entirely proper to see the goodwill damage consumers themselves saw for Profile in the marketplace. It is entirely proper to receive the actual statements, emails, websites, pictures, and videos that consumers were subjected to relative to damage LOL did to the goodwill of the Profile name. The notion proposed by LOL, that somehow corrective advertising is not relevant to a trademark case, is simply not the law and their own expert has testified otherwise. Once again, Weston Anson, their own trademark expert, admitted not only that corrective advertising is often



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needed, but also that if feed killed, a particularly assertive corrective advertising campaign would be necessary (this also takes it beyond the 25% FTC guideline LOL has sought to apply) stating: (By Mr. Santangelo) Okay. So in an instance where there was trademark infringement, the 25 percent rule is an appropriate application, correct? A It is appropriate, yes. Q In an instance -- you remember the example earlier, if Gold Kist sold chickens that killed 50 children? Something, that example that you used? That would be an instance where perhaps some extraordinary efforts would be needed to do corrective advertising. Correct? A Yes. If CLP had been killing chickens before the negotiation period, the value of the trademark would be much lower. Q Right. But importantly, there would need to be a particularly assertive corrective advertising campaign to fix an instance where feed was killing children. A Yes. Excerpt of Deposition of Weston Anson, attached as Exhibit 5. A litany of cases beginning with the seminal Big O decision establish that corrective advertising can indeed be a proper item of damage consideration. See generally, Big O' Tire Dealers, Inc. v. Goodyear Tire & Rubber Co., 408 F.Supp. 1219, 1231 (10th Cir. 1976); Adray v. Adray-Mart, Inc., 76 F.3d 984, 988-989 (9th Cir. 1995); UHaul Int'l., Inc. v. Jartran, Inc., 703 F.2d 1034, 1042 (9th Cir. 1986); Am. Farm Bureau Fed. v. Alabama Farmers Fed., 935 F.Supp. 1533, 1550 (M.D. Ala. 1996); PBM Products, Inc. v. Mead Johnson & Co., 174 F.Supp. 2d 417, 421 (E.D. Va. 2001). [NOTE: The last of these cases is relevant in another regard as well. It recognized that publicizing the filing of a trademark infringement lawsuit was itself a legitimate way to implement corrective action and mitigate damages. This is exactly what Treiber has explained in other facets of this suit.] LOL's expert explains that it is a matter of degree. The nature of the harm has to be considered to render a proper opinion. In fact, Treiber's expert, Cate Elsten did exactly that in rendering her opinion that at least $2.8M of corrective advertising was necessary. Referring to her report attached as Exhibit 6, Ms. Elsten was informed of and in her report even noted the alpaca deaths (p.4), noted the alpaca lawsuits (p.4), noted the negative Q



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publicity surrounding various animal deaths (Ms. Elsten was only aware of 6, not 15, different species death claims by consumers at the time)(p.16). She opined that at least $2.8M of

corrective advertising appeared appropriate. She was even deposed on this aspect. The nature and extent of the alpaca deaths is an integral part of her opinion and should not be excluded. Further, in at least one trademark infringement case considering Rule 403's unfair prejudice proscription, such evidence (a settlement relating to a mark that was explicitly found to be "totally different") was not excluded. Sunstar, Inc. v. Alberto-Culver Co., Inc., 2005 U.S. Dist. LEXIS 23098, *18 (N.D. Ill. 2005). The evidence at issue here is immensely relevant to the damage LOL caused to Treiber's Profile trademark and it also should not be excluded. Testimony by LOL's own trademark expert identifies the harm as "meaningful" from the perspective of the trademark claims. He indicated that harm occurring when a product intended to nourish actually kills the animals eating it is relevant and may justify a particularly assertive corrective advertising campaign from the perspective of trademark injury. There are also other claims involved, namely, unfair competition, and deceptive trade practices. Naturally, the above 22 aspects apply to each of these claims as well. As this Court may recall, the scope of the unfair competition claims is disputed by LOL. However, for purposes of this response, it should be understood that Treiber is raising each of the above 22 aspects under each claim raised: the trademark claims, the deceptive trade practices claims, and the unfair competition claims (as previously explained to involve an array of legal causes itself). Furthermore, it may be helpful to note that Treiber does not oppose and even supports the safety of a limiting instruction that states that the evidence is to be accepted and considered for only each of the 22 items. Importantly, in considering any possibility of exclusion of the alpaca evidence, it is necessary to consider each of these items as separate and independent grounds under each basis of claim. Regardless,



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though, when properly considered, it seems clear that the extraordinary remedy of exclusion is not appropriate in this case. Finally, specific items suggested by LOL in its brief may be misleading or otherwise deserve specific commentary as follows: Itemizing Evidence: In posing its argument, LOL argues that the alpaca deaths are not relevant to confusion, scope of sales, or intent to benefit from goodwill. As aspect #13 in the above list shows, it is relevant to the actual confusion that Treiber's Profile mark experienced relative to the alpaca deaths. Of course, it is not necessary that the evidence be relevant to every element in every claim, so LOL's argument should not be taken to suggest that because it is not relevant for one element if proof, it is not relevant for any element of proof. Mention of Profile in Every Document: In discussing one of the documents in isolation, LOL suggests that because that one document does not mention Profile (until page two in fact), that document somehow is not relevant to claims of damage to the Profile mark. At issue is the fact that Profile's goodwill has been harmed in the marketplace. Certainly, harm can occur without every document (or even any document) relevant to that harm mentioning Profile; the harm in the marketplace is a cumulative result of the activities of LOL, not of any one item of any one document. The documents could even simply corroborate the nature and extent of consumers' perceptions and associations and the nature and extent of the harm caused. They are part of the whole package the marketplace experienced and are part of the total scenario of harm LOL caused to the Profile goodwill. Court Pleadings: LOL suggests the court pleadings have no bearing on the issues in the case. As listed aspects #16 & #17 above (among others) show, the volume and nature of the court pleadings relative to the alpaca deaths are relevant to these and other listed aspects and



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should not be excluded. They demonstrate the way LOL raised defenses and laid ground for the perceptions experienced relative to the Profile brand in the marketplace. As the marketplace communication received by LOL's own "Ask An Expert" website attached as Exhibit 2 shows, the marketplace perceived that LOL's tactics involving the Profile feed deaths was one of "deliberately stalling with legal tactics taking a `so sue us' stand as the solution." The court pleadings are relevant to permit the finder of fact to form its own conclusion as to whether this observation was warranted or not. As listed aspects #15, #16, and #17 highlight, they also are relevant to provide direct evidence as to how LOL defended such claims. By their content, volume, and significant tenor, they are an indicator of the extent of goodwill harm that consumers perceived relative to the Profile mark in the marketplace. Product Liability Mini Trial: As can be seen from the listed aspects, there is no intent to offer the alpaca deaths evidence in a manner that would waste time to prove a product liability type of cause. In fact, LOL has admitted liability for the deaths. The alpaca evidence is offered for aspects relevant to damage to goodwill and for other listed aspects. Not one of these relates to proving liability for the alpaca deaths; that is already admitted. No Sales in Ohio, No Alpaca Feed, Damage only in Ohio: LOL suggests: i) Treiber has no presence in Ohio, ii) alpaca feed is completely unrelated to Treiber's products, and iii) the alpaca deaths caused damage only in Ohio. None of these is correct. First, Treiber has

advertising in Ohio, Treiber's products have been distributed in Ohio (although admittedly it has not directly "sold" product there), and the parties are currently briefing issues relative to admissibility of testimony from a witness that will testify as to the presence of Treiber's Profile in Ohio where she has explicitly distributed product. To suggest that Ohio is isolated in the marketplace is not accurate. Second, Treiber has manufactured and sold llama feed. Although



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llamas are technically different from alpacas, both are camelids and are often fed the same feeds. What is important, is not the genus or species of animal involved, but rather the scope of the goods under the trademark ­ animal feeds. While technically accurate, it is misleading to highlight the fact of no alpaca sales when the true rights involved are rights relating to animal feed in general. Finally, as explained the damage involved is not the deaths of the alpacas, it is the damage to the goodwill of the Profile trademark ­ a damage that spread like wildfire all over the country. 60 Listed Witnesses: Although there are a number of witnesses listed as alternatives, as already represented to this Court, Treiber has committed to call only 3 or 4 witnesses relative to the alpaca deaths with testimony of about an hour each. If the indicated witnesses are not available, replacements will be called. This will not distract the trial nor will it take a significant amount of time. Alpaca Owners not Confused: LOL suggests that the alpaca owners are not confused as to the maker of the killer feed. Now, after their years in litigation and Treiber's publicity actions to correct and minimize confusion, we hope that that is correct for those people. We hope they are not confused now, but at issue is the damage created for the marketplace. The witnesses will testify as to how they know the Profile brand was damaged. [Note: LOL never took a deposition of any of the witnesses listed for the alpaca death aspects, so it cannot be determined how LOL can make such representations to the Court.] In addition, the issues are not the owners' current state of mind but what they and the marketplace knows about the Profile goodwill and what was communicated to the marketplace when these people were facing the damaging events as well as what they communicated to others that would have impacted the Profile brand. Indeed, judging from interviews Treiber (or more appropriately its counsel) conducted with the alpaca owners,



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many were initially unaware that there were two sources of Profile feed and were thus confused as to the source of genuine Profile feed. LOL's representation to this Court seems unfounded and if anything it highlights the need for live testimony on these aspects. Intent to Benefit: LOL suggests in its brief that in order to establish infringement, Treiber has to show i) a likelihood of confusion (true), and ii) intent to benefit from the goodwill of the Plaintiff (false). Intent is not now and has never been a required element of infringement. Indeed, if it were, we might all be able to legally use the mark "Coke" so long as we merely did not intend to benefit from Coca-Cola's goodwill. Intent to benefit is not an element that needs to be proven and the subtle attempt to create such a misimpression should not be overlooked. The Western Diversified case cited by LOL merely relates intent to willfulness, not the infringement itself. The Tenth Circuit court in Western Div. Serv., Inc. v. Hyundai Motor Am., Inc., 427 F.3d 1269, 1274 (10th Cir. 2005), expressly stated: "[b]ecause an award of profits under the Lanham Act is grounded in equity, there may be other situations that constitute willful infringement even though the defendant does not intend to derive any benefit from the plaintiff's goodwill or reputation. For example, if the defendant deceives the plaintiff into thinking he has ceased infringing the trademark when in fact the illegal action continues, a finding of willfulness might be appropriate. Similarly, misrepresentation to the courts might constitute willful infringement. Finally, if the wrongdoer uses its own economic muscle to weaken a plaintiff who has threatened an infringement action, a finding of willfulness might be justified.

Clearly, there are a variety of facts that can support a finding of willfulness. There are a variety of facts that can support bad faith and intentional infringement as well. Importantly, though it should be understood that intent to benefit from the goodwill of the Plaintiff is not required. CONCLUSION Exclusion is an extraordinary remedy to be used sparingly. The evidence in dispute here includes testimony, statements, emails, pictures, websites, and video that establishes a special



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type of harm to a trademark - harm caused by an infringer far beyond `mere' confusion in the marketplace. It is evidence showing separate destruction of goodwill for the mark regardless of who controlled that mark. It even seems to distinguish this case from every other reported trademark case. It would be improper to exclude the evidence of precisely what consumers saw in the marketplace. It would be improper to exclude evidence of the means by which and the extent to which the goodwill of Treiber's trademark was actually harmed in the marketplace. The jury can decide for themselves if they believe such communications would harm the overall goodwill of the Profile mark. While LOL would like to avoid the consequences of its actions, the fact that the evidence itself is damaging does not make it unfairly prejudicial. Indeed, most evidence may lead to prejudicial conclusions, but Rule 403 prohibits only 'unfair' prejudice. This evidence does not cause unfair prejudice. It does not have an undue tendency to suggest decision on an improper basis, and even if there were such a risk, a limiting instruction could be provided and so the evidence should not be excluded. Respectfully submitted this 4th day of May, 2007. SANTANGELO LAW OFFICES, P.C. By: /s/ Luke Santangelo Luke Santangelo Attorney for Plaintiff 125 S. Howes St., Third Floor Fort Collins, CO 80521 Phone: (970) 224-3100 Fax: (970) 224-3175 Email: [email protected]



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CERTIFICATE OF SERVICE (CM/ECF) I certify that on the 4th day of May, 2007, I electronically filed the foregoing "Response To Motion In Limine To Exclude Evidence Concerning Deaths Of Alpacas" using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] and that I have directed mailing of "Response To Motion In Limine To Exclude Evidence Concerning Deaths Of Alpacas" to the following by U.S. mail, postage prepaid, this day, as follows: Mr. Ryan Stern Dean & Stern, P.C. 4155 E. Jewell Avenue Suite 703 Denver, CO 80222 Mr. Ted Svitavsky 7785 Highland Meadows Parkway Suite 203 Windsor, CO 80528

s/Luke Santangelo___ Luke Santangelo Attorney for Plaintiff Santangelo Law Offices, P.C. 125 S. Howes, Third Floor Fort Collins, CO 80521 Telephone: (970) 224-3100 Email: [email protected]



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