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Red Hawk LLC v. Colorforms Brand LLC

'Daubert' Motion Only Partly Granted in Action on Royalties for Use of Toy's Name

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OPINION & ORDER Plaintiff Red Hawk, LLC (“Red Hawk”) sued Defendants Colorforms Brand LLC, Out of the Blue Enterprises LLC, and OOTB Productions, Inc. (collectively “Defendants”) for breach of the parties’ Royalty Agreement for use of the Colorforms brand name. Am. Compl., Dkt. 51. Plaintiff has moved to exclude (1) the expert report and testimony of Susan E. Miller regarding the meaning of the term “Products” as it is used in the Royalty Agreement and (2) the expert report and testimony of Ezra J. Doner pertaining to the value of a hypothetical frontend license fee for use of the Colorforms name in connection with filmed entertainment. Daubert Mot., Dkt. 76. Defendants have also moved to redact portions of the Miller and Doner Reports pertaining to the agreed-upon royalty rates, Defendants’ business dealings with non-party Netflix, Inc., expert fees, and Defendants’ proprietary information regarding industry agreements; Plaintiff consents to the requested redactions. Mot. to Seal, Dkt. 75. For the reasons stated below, Plaintiff’s Daubert motion is GRANTED in part, and Defendants’ motion to redact the expert reports is GRANTED. BACKGROUND Colorforms is a children’s toy comprised of colored, vinyl shapes that cling to smooth surfaces and stack to form patterns and designs. Am. Compl. 2. Through a series of transactions more than twenty years ago that are not relevant to these motions, Plaintiff has the right to royalty payments from Defendant Colorforms Brand LLC for use of the Colorforms name in connection with “Products,” as that term is defined in the Royalty Agreement, while Defendant Colorforms Brand LLC owns the Colorforms brand. Id.

3, 10-11. Red Hawk sued Defendants to recover royalties allegedly due for the use of the Colorforms brand name, including payment for use of the brand name in Charlie’s Colorforms City, an animated Netflix series. Am. Compl.

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