ORDER

G. R. SMITH, Magistrate Judge.

"Consumers who purchase a particular product expect to receive the same special characteristics every time. The Lanham Act protects these expectations by excluding others from using a particular mark and making consumers confident that they can purchase brands without being confused or misled." Davidoff & CIE, S.A. v. PLD Intern. Corp., 263 F.3d 1297, 1301 (11th Cir. 2001) (citation omitted). The Act likewise "protects trademark owners. . . . [It] prevents another vendor from acquiring a product that has a different set of characteristics and passing it off as the trademark owner's product." Id. (cites omitted). It also drives the core of this trademark infringement action, brought by one gun-maker against another, and generating a passel of pretrial motions.1

I. BACKGROUND

Plaintiff Daniel Defense, Inc. ("DD") sued Remington Outdoor Company, Inc. and Remington Arms, Company, LLC ("Remington"). Doc. 1, as amended, doc. 14.2 Remington Outdoor has since been dropped, do. 89 at 2, so only Remington. DD "is a manufacturer, distributor and seller of firearms and firearms accessories in the United States with product distribution throughout the world." Doc. 46 at 3. It accuses Remington, a competitor, of copying and misusing its "LIGHTER, STRONGER, BETTER . . . ®" and ">> ®" registered trademarks, thus violating 15 U.S.C. § 1114(1) (the Lanham Act) and state law, O.C.G.A. § 10-1-370 et seq. Doc. 14 at 4; id. at 15 ¶ 30; id. at 16 ¶ 34.3 DD also raises an unfair competition claim. Id. at 16-17. It seeks damages.4 Despite a claimed discovery snag (hence, Remington's motion to compel, doc. 62), Remington has filed a summary judgement motion (doc. 74), which, if granted, would be case-dispositive of all DD claims. That motion is pending before the district judge.5

I. ANALYSIS

A. Governing Standards

Motions to compel are governed by the rules of discovery, which

Brannies v. Internet ROI, Inc., 67 F.Supp.3d 1360, 1362 (S.D. Ga. 2014) (emphasis added). "Rule 26 . . . sets forth a very low threshold for relevancy, and thus, the court is inclined to err in favor of discovery rather than against it." McCleod v. Nat'l R.R. Passenger Corp., 2014 WL 1616414 at * 3 (S.D. Ga. Apr. 22, 2014) (quotes and citation omitted).

B. Trademark Standards

Remington's Motion to Compel turns on claims and defenses that principally revolve around the Lanham Act's protection of trademarks (a/k/a "marks"). The parties' chief factual dispute is over the "similarity of marks, similarity of goods, similarity of channels of commerce, similarity of care of consumers, similarity of associated goods and trademark priority." Doc. 46 at 6. Their chief legal dispute is "about the validity and infringement of the [DD] marks." Id. It is thus worth reviewing the Lanham Act principles that inform their arguments. Under it:

Fla. Int'l Univ. Bd. of Trustees v. Fla. Nat'l Univ., Inc., ___ F. Supp. 3d ___' 2015 WL 1208047 at *3(S.D. Fla. Mar. 4, 2015) (emphasis added). 6

The confusion factor figures into plenty of discovery disputes, including a big bone of contention here:

Florida International, 2015 WL 1208047 at * 3 (emphasis added); see also Sovereign Military Hospitaller (Etc.) v. The Florida Priory of the Knights Hospitallers (Etc.), ___ F.3d ___, 2015 WL 6000633 at * 7-16 (11th Cir. Oct. 15, 2015) (comprehensive exploration of these factors); TracFone Wireless, Inc. v. Clear Choice Connections, Inc., 2015 WL 1954075 at * 4 (S.D. Fla. Apr. 27, 2015). Discovery quests and, ultimately, the evidence presentation a plaintiff must make, necessarily delve into considerable nuances because courts not only balance those seven factors, but do "not have to consider all of [them] in every case and in some cases, new factors may merit consideration." Sovereign Military Hospitaller, 2015 WL 6000633 at * 8 (quotes and cite omitted). Too,

Florida International, 2015 WL 1208047 at * 3 (emphasis added). Such weighing enables the:

Id. In many case the analysis (hence, discovery) extends to third party use (or not) of the disputed trademark. "The strength of a mark may also be affected by the degree to which third parties make use of the mark; the less that third parties use the mark, the stronger it is, and the more protection it deserves." Id. at * 4. Finally, "trademark rights are not static and . . . the strength of a mark may change over time." Sovereign Military Hospitaller, 2015 WL 6000633 at * 10 (quotes and cite omitted).

The public-university plaintiff in Florida International, which had trademarked "Florida International University"/FIU," sued a for-profit university, Florida National University ("FNU") for infringement. Id. at * 1. The court agreed that the two names "do sound similar," id. at * 6, but "examined in totality this factor does not weigh in favor of a finding of a likelihood of confusion." Id. Also, while the schools' degree programs overlapped, id. at * 7-9, there was "little evidence of an overlap in the audience of the schools advertising," id. at 9 (emphasis original), and the difference in their applications standards and degrees that they issued suggested that there were two vastly different consumer groups. Considering the students' presumed sophistication and their time and financial investment involved, they were unlikely to suffer trademark confusion, so the Court ruled against FIU. Id. at * 12.

The above standards evince a compendium of factors, which themselves are gauged at different intensity levels (e.g., just how often and at what level of focus and retention do consumers associate a slogan or phrase with a particular product, and how often are they confused), and thus authorize (or not) pretrial discovery requests and potential judicial compulsion when such requests are not fulfilled. It therefore is not surprising that various imaginative measures are used to discover, then adduce, evidence to prove or disprove a trademark's classification (i.e., whether it is generic, arbitrary, etc.). Trademark litigants can try to prove or disprove brand confusion, for example, with consumer surveys. See Tartell v. South Fla. Sinus and Allergy Or., Inc., 790 F.3d 1253, 1257 (11th Cir. 2015) ("A plaintiff may prove secondary meaning with direct evidence, such as consumer surveys, or circumstantial evidence."); accord, Florida International, 2015 WL 1208047 at * 14; TracFone Wireless, 2015 WL 1954075 at * 10 n. 6. Experts can be used on that score, see, e.g., Florida International, 2015 WL 1208047 at * 14, as was done in this case.7

C. Remington's Motion to Compel

In Remington's motion to compel it complains that it has repeatedly pressed DD

Remington also asked DD how it "cleared" its own trademarks before adopting them.8 Doc. 62 at 2. That's important, it contends, because DD accuses Remington of failing to take proper precautions before it ran its offending (according to DD) advertisements. Id. Remington defends against that accusation by insisting that it did not consider what it used in its advertising to be a DD trademark; alternatively, it at most used it in a "non-trademark" way. Id. Remington also "disagrees that its failure to run a trademark clearance search on non-trademark advertising is exceptional; it therefore seeks discovery into DD's trademark clearance process to see if DD holds itself to this high standard." Id. at 3. In effect, then, Remington seeks DD's demeanor evidence to bolster its defense (i.e., if DD did not see fit to "clear" its own marks, then that's demeanor evidence that DD itself believed that its marks are generic or otherwise not protectable). 9

Remington also wants DD to "disclose which of the advertisements [that DD] produced have been published, or when and where they were published." Doc. 62 at 3. That's relevant to DD's burden to prove Remington's infringement since DD must prove that consumers exposed to Remington's advertising "are likely to be confused" by it. 10 Id. Contending that DD has improperly refused to produce this information, Remington moves the Court to compel DD on those grounds, too. Id. at 2-23. It also wants attorney fees and costs as a discovery sanction. Id. at 23-24.

DD dismisses Remington's motion to compel outright, insisting that, inter alia, it "unnecessarily wastes the judicial resource, is testing of the discovery process, misconstrues the Record, inconveniences the Court via an improper request to reopen discovery, is wrong on the merits and the law, deals in distraction, and argues peripheral points — and hence, should be denied." Doc. 64 at 1. DD cites its amended complaint, where it comprehensively set forth all of the ways in which it alleges that Remington infringed DD's trademarks. Id. at 3-6 (DD's response brief). DD now feels that it "should not be burdened by Remington's bad faith demand to be advised as to EACH and EVERY piece of advertising that contains the accused phrases and logo — as Remington itself knows and has in its possession the identities of its own advertising materials which have been clearly identified since the very beginning of this lawsuit."11 Id. at 6. On top of all that, Remington's motion and the discovery requests that support it are untimely.

Remington's compel motion is not untimely.12 And the Court would be inclined to agree with Remington that DD cannot have it both ways regarding its "infringement identification." Doc. 78 at 2-7. Trial by ambush is not allowed, McCleod, 2014 WL 1616414 at * 2, and DD must necessarily know how and when Remington infringed its marks in order to meet the above-excerpted standards. Indeed, it obviously will have to reveal it at trial. So the Court would be inclined to limit DD from introducing at trial evidence of allegedly infringing material other than what DD has specifically identified in its Amended Complaint and has timely produced to Remington within the discovery period here. See Brannies, 67 F. Supp. 3d at 1362 ("The discovery rules require the disclosure of all relevant information so that ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts. . . .") (quotes and cite omitted). To that end, the Court's review of the record thus far inclines it to award Remington Fed. R. Civ. P. 37 sanctions because DD, Remington has shown, supplied it with an under-prepared Rule 30(b)(6) deposition witness on the foregoing topic.13

But the lion's share of this discovery dispute stands a reasonable chance of being mooted if the district judge awards summary judgment to Remington (again, its pending motion seeks complete judgment against DD, doc. 74). Indeed, Remington's own "compel" reply brief underscores the inextricable intertwinement of its compel and summary judgment motions. Compare, e.g., doc. 78 at 11-12 (compel reply brief arguing that DD must be compelled to produce DD's prior advertisements because they go to the very "secondary meaning" argument that DD insists that its marks have acquired, and "are also relevant to the likelihood of confusion analysis.14); with doc. 74 at 2 (summary judgment motion arguing that DD cannot show secondary meaning, citing Tana v. Dantanna's, 611 F.3d 767, 777-83 (11th Cir. 2010) (granting defendant restaurant owner summary judgment; although the marks — "Dan Tana's" versus "Dantanna's" — were somewhat similar and used in similar sales channels, the plaintiff's mark was merely descriptive and thus weak, the parties' restaurants and advertisements were different and vastly separated geographically, there was no evidence of intent, and the evidence of confusion was "nominal")); and id. at 3 (seeking cancellation of DD's marks because they "are descriptive at best, and DD has presented no evidence of secondary meaning or acquired distinctiveness."). If Remington prevails on its summary judgment motion, that would moot its interest in discovering information on how DD generated distinctiveness (hence, secondary meaning) for its marks.

More importantly, a relevancy-based, "compel" decision here would risk conflicting with the district judge's ruling on Remington's summary judgment "Objection," filed as a summary-judgment-supporting motion to exclude evidence (thus invoking Fed. R. Civ. P. 56(c)(2); see also Rule 56(h)). In it Remington contends:

Doc. 98 at 2 (footnotes omitted; emphasis added).

On summary judgment the district judge could rule, as a matter of law, that (as Remington contends) DD has no protectable marks at all, thus mooting the instant discovery dispute. Or, he could determine a trademark classification or strength level that would warrant some discovery, but not as much as Remington now seeks to compel. Put another way, there is a reasonable probability that a summary judgment ruling could sway the undersigned's ruling on what DD must now divulge, how much, and whether it should be sanctioned. Conversely, a ruling here may well conflict with a ruling there. It thus makes sense to administratively deny Remington's compel motion for the moment. Either party, for that matter, is free to invoke Fed. R. Civ. P. 56(d) if in fact discovery of more information can reasonably be shown to affect summary judgment in its favor. See McCleod, 2014 WL 1616414 at * 2.

III. CONCLUSION

The Court DENIES in part (i.e., the merits of) Remington's motion to compel (doc. 62) without prejudice to its right to renew it following the district judge's ruling on its summary judgment motion, doc. 74. The Court DEFERS, until after the summary judgment ruling, Remington's sanctions request.15 Doc. 62 at 23-24; doc. 78 at 15-18. DD's motion for a leave of absence is DENIED as moot. Doc. 65. Finally, the unopposed motions to file summary judgment exhibits under seal (doc. 92 & 97) are GRANTED.

SO ORDERED.