IP Law Daily, TRADEMARK—D. Ariz.: ‘RAW’ rolling papers maker not entitled to new trial in ‘RAW GARDEN’ trademark dispute, (Aug 21, 2026)

By Mandavi Singh, LL.M.

Evidentiary and expert-testimony rulings did not substantially prejudice the rolling papers seller or undermine the jury’s verdict for the cannabis products company.

Ruling on a post-trial motion in a trademark infringement lawsuit involving the RAW and RAW GARDEN marks, a federal district court in Arizona denied BBK Tobacco & Foods LLP’s (BBK) request for a new trial following a jury verdict for Central Coast Agriculture, Inc. (CCA). The court rejected BBK’s challenges to rulings concerning the discovery cutoff, its trademark registrations, evidence of actual confusion and CCA’s later products, evidence intended to rebut CCA’s trial narrative, and competing survey experts. None of the challenged rulings individually or collectively substantially prejudiced BBK or resulted in a miscarriage of justice warranting a new trial (BBK Tobacco & Foods, LLP v. Central Coast Agriculture, Inc., No. 2:19-cv-05216-MTL (D. Ariz. Aug. 20, 2026)).

Dispute. BBK sells rolling papers and related smoking accessories under several RAW trademarks. CCA is a California cannabis company that sells cannabis products under the RAW GARDEN mark. BBK sued CCA in 2019, asserting trademark infringement and related Lanham Act claims. The district court later granted partial summary judgment to CCA, but the Ninth Circuit reversed in part and remanded the dispute. Before trial, the parties agreed to supplement only their financial disclosures and related expert reports rather than reopen discovery generally. The court subsequently denied BBK’s request to supplement its disclosures with newly issued trademark registrations and materials concerning changes to CCA’s products and packaging. A jury ultimately returned a verdict for CCA, prompting BBK to seek a new trial under Federal Rule of Civil Procedure 59.

Discovery cutoff. BBK principally argued that enforcing the May 2021 discovery deadline created a “time bubble” that improperly required the jury to decide the later dispute using 2021 evidence. The court disagreed that it had categorically excluded all post-2021 evidence. It had instead enforced the scheduling order while considering individual evidentiary issues as they arose at trial and had permitted some later evidence.

The court distinguished Sidibe v. Sutter Health, 103 F.4th 675 (9th Cir. 2024), where wholesale exclusion of categories of evidence without appropriate balancing constituted an abuse of discretion. Here, the court imposed a reasonable disclosure limitation and made individualized evidentiary rulings. BBK also had agreed at the trial-setting conference to limit further supplementation to financial information.

BBK further argued that the cutoff prevented it from receiving the statutory presumptions associated with later registrations and incontestable trademark status. Any error was harmless, the court held, because CCA did not contest the validity of BBK’s RAW marks. The jury received instructions permitting BBK to establish validity through USPTO registration, and the court judicially noticed BBK’s ownership and registration of relevant marks. Moreover, incontestability concerned validity rather than the marks’ commercial strength or likelihood of confusion. Citing Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189 (1985), the court concluded that the additional presumptions BBK requested would have addressed an issue that was not disputed at trial.

Excluded evidence. The court also rejected BBK’s contention that it had improperly prevented the company from rebutting CCA’s trial narrative. BBK sought evidence concerning CCA’s alleged environmental violations, institutional investors, and the federal illegality of its cannabis business. Those subjects had little relevance to the central trademark question—whether CCA’s use of “raw” in RAW GARDEN was likely to cause consumers to confuse its products with BBK’s RAW-branded goods.

Moreover, BBK had told the jury that CCA’s products were illegal under federal law, elicited testimony about its institutional investors, and introduced evidence that RAW and RAW GARDEN products were sold in the same California dispensaries. The exclusions therefore did not affect BBK’s substantial rights.

Survey experts. Finally, BBK failed to establish prejudicial error in the treatment of the parties’ survey experts. CCA’s expert testified that net confusion rates below approximately 15 to 20 percent were relatively low and identified trademark literature supporting her assessment. The court rejected BBK’s argument that this amounted to an improper legal conclusion. The expert described materials informing her professional opinion rather than telling the jury what law governed or what result it should reach. Under Turner v. Burlington N. Santa Fe Railroad Co., 338 F.3d 1058 (9th Cir. 2003), an expert may rely on materials reasonably relied upon by experts in the field.

The court also properly restricted BBK’s expert from offering an undisclosed opinion about the statistical significance of his survey results. Even assuming error, the exclusion was harmless because his proposed testimony would merely have established that the results differed statistically from zero, not that they demonstrated a likelihood of confusion. Exclusion of several anonymous survey-response exhibits likewise did not justify retrial because BBK had already presented many of the underlying responses to the jury.

Accordingly, the court concluded that BBK failed to show that any challenged ruling substantially prejudiced its case or produced a miscarriage of justice and denied its motion for a new trial.

The Case is No. 2:19-cv-05216-MTL.

Judge: Liburdi, M.

Attorneys: Cindy Aracely Villanueva (Dickinson Wright PLLC) for BBK Tobacco & Foods LLP. Brett Michael Schuman (Goodwin Procter LLP) for Central Coast Agriculture Inc.

Companies: BBK Tobacco & Foods LLP; Central Coast Agriculture Inc.

Cases: Trademark ArizonaNews