IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION THE NORTH FACE APPAREL CORP., ) ) Case No. 4:09-cv-02029-RWS Plaintiff, ) ) Declaration of v. ) Dr. Gerald L. Ford ) WILLIAMS PHARMACY, INC., ) JAMES A WINKELMANN, JR., and ) THE SOUTH BUTT LLC, ) ) Defendants. ) ______________________________) I, Dr. Gerald L. Ford, hereby declare as follows: INTRODUCTION 1. I am a partner in the marketing research and consulting firm of Ford Bubala & Associates, located in Huntington Beach, California, where I have been engaged in commercial marketing research and consulting for the past thirty- seven years. I am also an emeritus faculty member of the School of Business Administration, California State University, Long Beach, where I held a full-time teaching position for twenty-five years, prior to my retirement from academia in 1994. My professional experience is further summarized below in paragraphs 28 through 38. 2. In the instant matter, at the request of Davis Wright Tremaine LLP, counsel for Plaintiff, The North Face Apparel Corp. ("The North Face" or "Plaintiff"), I designed and caused to be conducted a survey to address the issue of likelihood of dilution with respect to Defendants’ use of "The Butt Face" name and logo. Specifically, the survey was designed to measure the degree, if any, to which Defendants’ use of "The Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 1 of 25 PageID #: 460
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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE NORTH FACE APPAREL CORP., )) Case No. 4:09-cv-02029-RWS
Plaintiff, )) Declaration of
v. ) Dr. Gerald L. Ford)
WILLIAMS PHARMACY, INC., )JAMES A WINKELMANN, JR., and )THE SOUTH BUTT LLC, )
)Defendants. )
______________________________)
I, Dr. Gerald L. Ford, hereby declare as follows:
INTRODUCTION
1. I am a partner in the marketing research and
consulting firm of Ford Bubala & Associates, located in
Huntington Beach, California, where I have been engaged in
commercial marketing research and consulting for the past thirty-
seven years. I am also an emeritus faculty member of the School
of Business Administration, California State University, Long
Beach, where I held a full-time teaching position for twenty-five
years, prior to my retirement from academia in 1994. My
professional experience is further summarized below in paragraphs
28 through 38.
2. In the instant matter, at the request of Davis
Wright Tremaine LLP, counsel for Plaintiff, The North Face
Apparel Corp. ("The North Face" or "Plaintiff"), I designed and
caused to be conducted a survey to address the issue of
likelihood of dilution with respect to Defendants’ use of "The
Butt Face" name and logo. Specifically, the survey was designed
to measure the degree, if any, to which Defendants’ use of "The
trustworthiness detailed by the Federal Judicial Center in the
Manual for Complex Litigation, Fourth.1
9. I was responsible for the design of the survey,
the screener and test and control cell questionnaires, as well as
for the procedures to be followed in conducting the interviews.
Data gathering was carried out, under the direction of Ford
Bubala & Associates, by Issues & Answers an independent survey
organization which hosted the online data survey using internet
panelists obtained from Survey Sampling International.
10. Ford Bubala & Associates conducted validations of
approximately twenty-one percent (20.75%) of the interviews by
recontacting, by telephone, survey respondents to confirm their
qualification and participation in the survey.2 None of the
interviews failed to validate.
11. The survey conducted in this matter was
administered under a double-blind protocol. The respondents were
not informed as to the purpose or sponsor of the survey, and
similarly, both the staff of Survey Sampling International and
the staff of Issues and Answers were not informed as to the
purpose or sponsor of the survey.
1 For the proffered poll or survey, "...Relevant factorsinclude whether: the population was properly chosen and defined;the sample chosen was representative of that population; the datagathered were accurately reported; and the data were analyzed inaccordance with accepted statistical principles...In addition, inassessing the validity of a survey, the judge should take intoaccount the following factors: whether the questions asked wereclear and not leading; whether the survey was conducted byqualified persons following proper interview procedures; andwhether the process was conducted so as to ensure objectivity..."See Federal Judicial Center, Manual for Complex Litigation,Fourth, Section 11.493, @ 102-104 (2004).
2 This level of validation exceeds industry standards.
internet panel created and maintained by Survey Sampling
International. Potential respondents were sent an email
invitation inviting them to fill out the screening portion of the
interview to determine whether or not they met the universe
definition. Subsequently, those potential respondents who met
the universe definition were invited to complete the main survey.
13. The relevant universe for this survey consisted of
males and females eighteen (18) years of age or older who were
likely, within the next six months, to purchase a T-shirt with a
name and logo.3
14. The respondent selection procedure employed in
this survey is referred to as a quota sampling method. This
method provided a respondent base that is generally
representative of the age and gender distribution of male and
female adults eighteen (18) years of age or older who report that
within the next six (6) months they are likely to purchase a
T-shirt with a name and logo. This age and gender distribution
3 Additionally, the survey universe was also restrictedto respondents (1) who were using a traditional desktop computer,a laptop/notebook computer, or a tablet computer to read thesurvey; (2) who resided in the United States; (3) who did not,nor did anyone else in their household, work for an advertisingagency, a public relations firm or a market research company; ora retail store or company that makes, sells, or distributes anyclothing; (4) who agreed to answer the questions in the survey bythemselves without the help or assistance of anyone else andwithout seeking information from any other source (e.g., internetsearch); (5) who, if they wore contact lenses or eyeglasses whenusing the device they were using right now would wear them duringthe questionnaire; and (6) who were willing to provide their nameand telephone number for telephone validation purposes.
was based upon an Opinion Research Corporation internet survey
conducted February 21-22, 2012, among a nationally representative
sample of one thousand (1,000) individuals across the United
States.4
15. As noted earlier, the likelihood of dilution
survey conducted in this matter employed a traditional scientific
experimental survey design consisting of two survey cells: (1) a
test or experimental survey cell designed to measure the degree,
if any, to which Defendants’ use of "The Butt Face" name and logo
is likely to cause an association with the Plaintiff’s name and
logo "The North Face"; and (2) a control survey cell designed to
measure the extent of mismeasurement error in the likelihood of
dilution test cell survey results.
16. In the test cell, survey respondents were shown a
photograph of a mannequin dressed in one of Defendants’ T-shirts
bearing "The Butt Face" name and logo. See Exhibit A, page 5.
4 Respondents in the Opinion Research Corporation surveywere asked whether, in the next six months, they were likely topurchase a T-shirt with a name and logo. The results of theOpinion Research Corporation survey indicate that the genderdistribution of purchasers of a T-shirt with a name and logo wasapproximately 56% male and 44% female and the age distributionwas approximately 41% 18 to 34, 43% 35 to 54, and 16% 55 andabove.
18. The control cell provides a measure of the extent
that mismeasurement exists in the likelihood of dilution test
cell survey results. Specifically, the control cell functions as
a baseline and provides a measure of the degree to which
respondents are likely to give a The North Face response to the
test cell survey questions, not as a result of Defendants’ use of
"The Butt Face" name and logo, but rather because of other
factors, such as the survey’s questions, the survey’s procedures,
or some other potential influence on a respondent’s answers.5
19. The test and control cells were separate surveys.
The questions and procedures for the test cell and the control
5 In this sense, a control cell is similar to theprotocols employed in a pharmaceutical drug test: the test orexperimental cell represents the drug or pill with the "active"ingredient(s) and the control cell represents the "placebo," thatis, the same pill with everything except the "active"ingredient(s).
cell were identical with the exception of the stimuli shown to
respondents. Any single respondent participated in interviews in
only one of the two survey cells.
20. A total of four hundred (400) interviews were
completed in this survey: two hundred (200) interviews were
conducted in the test cell; and two hundred (200) interviews were
conducted in the control cell.
SURVEY PROCEDURES AND QUESTIONS
21. Initially, potential respondents received an email
invitation (see Exhibit A, Appendix B) inviting them to fill out
the screening portion of the interview to determine whether or
not they met the universe definition. See Exhibit A, pages 6-9
and 42-45. Subsequently, those respondents who met the universe
definition were invited to complete the main survey. At the
beginning of the main survey, respondents were shown a screen
with a letter on it (i.e., W or X) and asked to enter the letter
on their screen. See Exhibit A, pages 9 and 45. This was done
as a tracking mechanism to identify which stimuli respondents
would be exposed to.
22. Respondents were then shown the following
statements.
In this survey, you are going to be shown a photographof a T-shirt and then asked a few questions.
Please understand that we are only interested in youropinions, and if you don’t have an opinion or don’tknow the answer to a question, that is an acceptableanswer.
Please feel free to take as much time as you likelooking at the T-shirt before moving on to the surveyquestions.See Exhibit A, pages 10 and 46.
What company or brand, if any, comes to mind when yousee this name and logo? Please be as specific aspossible.See Exhibit A, pages 11 and 47.
Respondents in the test cell and control cell were asked the
basis for their answer with the question:
Why do you say that?6 Again, please be as specific aspossible.See Exhibit A, pages 11 and 47.
Next, respondents in the test cell and the control cell were
again shown the reduced size split-screen photographs of the test
and control cell stimuli and asked:
What other companies or brands, if any, come to mindwhen you see the name and logo on this T-shirt? Again,please be as specific as possible.See Exhibit A, pages 12 and 48.
Respondents in the test cell and control cell then were asked the
basis for their answer with the question:
Why do you say that?7 Again, please be as specific aspossible.See Exhibit A, pages 12 and 48.
Finally, respondents in the test and control cell were shown the
statement:
Thank you for your time and participation.See Exhibit A, pages 12 and 48.
SURVEY RESULTS
Test Cell Survey Results
23. In the test cell, thirty-six percent (36.00%) of
the respondents who were shown Defendants’ T-shirt bearing "The
Butt Face" name and logo reported that The North Face, either
6 Respondents who answered ’don’t know’ to the priorquestion were not asked this question.
7 Respondents who answered ’don’t know’ to the priorquestion were not asked this question.
RESPONSE CATEGORY 1: The North Face - continuedRESPONDENT
NUMBER RESPONSE
1132 Q18 The North Face.Q19 Because it is clearly a parody of The North Face’s
logo.Q20 None. It’s The North Face.Q21 Because it’s obvious! It’s completely [expletive]
obvious what it is! You are making fun of The NorthFace! It is completely moronic for you to ask mefifteen [expletive] times what it is when it’sobvious? God, you market research people are complete[expletive] morons!
1134 Q18 North Face.Q19 The logo.Q20 None.Q21 None come to mind.
1142 Q18 North Face.Q19 They both have face in their names, and the logo
looks similar from afar.Q20 Don’t know.
1145 Q18 North Face.Q19 It looks very similar, however. North Face is
definitely not Butt Face.Q20 Nothing. That’s it.Q21 Immediately, I only thought North Face. It was very
similar.
1150 Q18 The North Face.Q19 The North Face.Q20 Don’t know.
1152 Q18 Is this a company name? I have never seen thisbefore.
Q19 I have never seen a shirt with a logo like this.Q20 I suppose it could be like North Face.Q21 The logo looks similar.
1154 Q18 North Face.Q19 It has the same logo.Q20 No other company comes to mind.Q21 It only reminds me of one brand.
1157 Q18 North Face.Q19 Similar style logo.Q20 North Face.Q21 Don’t know.
RESPONSE CATEGORY 1: The North Face - continuedRESPONDENT
NUMBER RESPONSE
1199 Q18 North Face.Q19 The logo and the name remind me.Q20 Don’t know.
RESPONSE CATEGORY 2: The North Face and The Butt FaceRESPONDENT
NUMBER RESPONSE
1041 Q18 Nike and The Butt Face.Q19 Print looks like Nike style.Q20 The North Face.Q21 Similarity to "The Butt Face."
1104 Q18 The Butt Face.Q19 It is the name on the shirt.Q20 None.Q21 It may be North Face.
1131 Q18 The Butt Face Never Stop Smiling.Q19 It was very different but the logo was not evasive.Q20 North Face.Q21 It is a similar style and seemed like it was very
close in name.
1137 Q18 The North Face.Q19 Logo looks like The North Face, and The Butt Face is
a funny take-off of The North Face. Sure looks likea rip-off of The North Face to me.
Q20 None.Q21 None.
1167 Q18 The Butt Face.Q19 The logo is clearly printed on the top right corner
of the T-shirt.Q20 The North Face.Q21 I’ve seen the other brand a little bit.
RESPONSE CATEGORY 3: The North Face plus OtherRESPONDENT
NUMBER RESPONSE
1025 Q18 The North Face.Q19 Because it looks similar to that brand logo.Q20 Urban Outfitters.Q21 It’s urban.