## Facts

- Idaho Golf Partners, Inc. (IGPI) operated a golf course in Caldwell, Idaho using the name “TimberStone Golf Course.”
- Timberstone Management, LLC (TSM) operated a golf course in Iron Mountain, Michigan also using the name “TimberStone Golf Course.”
- The parties litigated trademark and related Lanham Act claims and counterclaims concerning concurrent use of the TIMBERSTONE name for golf-course services and whether consumers were likely to be confused.
- Before trial, IGPI moved in limine to exclude TSM’s “actual confusion” evidence consisting of reports that golfers had called the wrong “TimberStone” course.
- TSM proposed two main categories of confusion-call evidence: (1) testimony from TSM employees who personally received the misdirected calls, and (2) testimony from a TSM owner recounting what employees told her about those calls.
- IGPI argued the caller statements were hearsay and unreliable because the callers would not be available for cross-examination.
- TSM argued the evidence was not hearsay because it was offered to show the callers’ confusion (state of mind) rather than to prove the truth of any factual statements made during the calls.

## Issues

1. Whether testimony from employees who personally received misdirected phone calls could be admitted to show actual consumer confusion, or whether it was barred as hearsay.
2. Whether an owner could testify about what employees reported regarding the misdirected calls, or whether that testimony was inadmissible hearsay within hearsay.
3. Whether the inability to cross-examine the callers required exclusion of the evidence, or instead went to the weight the jury should give it.

## Decision

- The court granted IGPI’s motion in limine in part and denied it in part.
- The court allowed TSM to offer testimony from employees who personally received the calls, reasoning that the statements could be used as nonhearsay to show the callers’ confusion or state of mind (rather than to prove the truth of any asserted facts).
- The court limited more remote testimony, including an owner’s secondhand recounting of what employees said callers told them, because it presented multiple layers of out-of-court statements that required a valid basis for admission at each level.
- The court rejected the argument that the evidence should be excluded simply because the callers were not available for cross-examination; that concern affected how persuasive the evidence might be, not whether it could be received when offered for a proper nonhearsay purpose and presented through witnesses with personal knowledge.
- The court indicated that, with proper limits on purpose and scope, the probative value of firsthand confusion-call testimony was not substantially outweighed by unfair prejudice or risk of misleading the jury.

## Legal Principles

- Evidence of actual consumer confusion is relevant to likelihood of confusion in trademark cases, but it must still satisfy the Federal Rules of Evidence.
- Out-of-court statements are not hearsay when offered to show the declarant’s confusion or state of mind, rather than to prove the truth of what the declarant asserted.
- Firsthand testimony from a witness who heard the caller can be admissible for the limited purpose of showing confusion, even if the caller does not testify.
- Hearsay within hearsay is inadmissible unless each level of repetition is independently admissible under an exclusion or exception.
- Concerns about the absence of cross-examination of the original callers generally bear on weight, not admissibility, when the statements are offered for a nonhearsay purpose and the testifying witness has personal knowledge.
- Rule 403 may support limiting instructions or scope restrictions so the jury does not treat confusion-call evidence as proof of disputed factual propositions unrelated to confusion.

## Conclusion

In this pretrial evidentiary order, the court permitted TSM to present firsthand testimony from employees who received misdirected “TimberStone” calls as evidence of callers’ confusion or state of mind, while restricting secondhand summaries from an owner that added extra hearsay layers without a proper basis for admission, and it treated the lack of caller cross-examination as a matter for the jury’s evaluation rather than an automatic bar.


Idaho Golf Partners, Inc. v. Timberstone Management, LLC, 2016 WL 4974944 (2016)