Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA427595
`ESTTA Tracking number:
`08/29/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91184978
`Defendant
`Walgreen Co.
`MARK J LISS
`LEYDIG VOIT & MAYER LTD
`TWO PRUDENTIAL PLAZA, SUITE 4900
`CHICAGO, IL 60601
`UNITED STATES
`cstevens@leydig.com
`Other Motions/Papers
`Michelle L. Calkins
`mcalkins@leydig.com
`/Michelle L. Calkins/
`08/29/2011
`2011.08.29 Walgreens' Response to Objections and Stmt of Objections
`(REDACTED).pdf ( 136 pages )(1851708 bytes )
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Opposition No. 91 184978
`Serial No. 76/682,070
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`McNEIL—PPC, INC.,
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`Opposer,
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`V.
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`WALGREEN C0,,
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`Applicant.
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`APPLICANT’S RESPONSE TO OPPOSER’S STATEMENT
`OF OBJECTIONS TO APPLICANT’S EVIDENCE
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`APPLICANT’S STATEMENT OF O TIONS TO OPPOSER’S EVIDENCE
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`Applicant Walgreen Co. (“Walgreens”) herein responds to Opposer’s Statement of
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`Objections to Applicant’s Evidence. Moreover, Applicant herein brings its own objections to
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`certain evidence sought to be introduced in these proceedings by Opposer McNeil-PPC, Inc.
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`(“McNeil”).
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`I.
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`Applicant’s Response to Opposer’s Statement of Objections to Applicant’s Evidence
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`A.
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`Dr. Simonson’s Survey and Testimony Are Admissible
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`McNeil’s Statement of Objections to Applicant’s Evidence seeks to exclude the
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`testimony and expert report of Dr. Alex Simonson (“Dr. Simonson”) submitted by Walgreens.
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`This objection is not well—founded and should be rejected.
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`The admissibility of evidence in oppositions is governed by the Federal Rules of
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`Evidence and Federal Rules of Civil Procedure. TBMP § 707.01. “Relevant evidence’ means
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`evidence having any tendency to make the existence of any fact that is of consequence to the
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`determination of the action more or less probable than it would be without the evidence.” Fed.
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`R. Evid. 401. Generally, “[a]ll relevant evidence is admissible, .
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`.
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`. [and] [e]vidence which is not
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`relevant is not admissible.” Fed. R. Evid. 402.
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`Federal Rule of Evidence 702 has been held to present the following test for admitting
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`expert testimony: (1) is the expert qualified and the testimony reliable; and (2) is the evidence
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`relevant and helpful to the trier of fact. See US. v. Jones, 107 F.3d 1147, 1156 (6th Cir. 1997)
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`(attached as Exhibit A); see also Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579, 27
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`U.S.P.Q. 1200 (1993).
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`1.
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`Dr. Simonson is Highly Qualified and his Survey and Testimony
`Stand Unrebutted by Anyone in the Field
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`Dr. Simonson conducted a consumer survey intended to gauge whether there is a
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`likelihood of confusion as between WAL-ZYR and ZYRTEC. Without a doubt, Dr. Simonson is
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`highly qualified for such an endeavor.‘ Significantly, nowhere in its Objections does McNeil
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`challenge Dr. Simonson’s qualifications or experience in the field.2
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`McNeil certainly had the resources to have hired its own survey expert at the outset of
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`this case, but it did not. If McNeil believed Dr. Simonson’s survey was faulty, McNeil could
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`have retained a professional to either (1) conduct a survey not containing the alleged flaws; or (2)
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`1 Dr. Simonson holds a Ph.D. in marketing, with distinction, from Columbia Business School (1994); a J.D. from
`New York University School of Law (1987); and an A.B., magna cum Zaude, from Columbia College, Columbia
`University (1984). He is an Associate Professor of Marketing at Seton Hall University, Stillman School of
`Business. He has been professionally active in trademark survey research since as early as 1990, and he has
`personally designed and implemented numerous likelihood of confusion surveys for TTAB proceedings and federal
`court cases. Further details of his qualifications appear in Appendix A of his “Report of a Survey to Determine the
`Likelihood of Confusion, If Any, Between WAL-ZYR Allergy Medications and ZYRTEC” (the “Report”).
`2 Indeed, similar attempts to exclude surveys conducted by Dr. Simonson have failed. See, e.g., Safe Auto Ins. Co. v.
`State Auto. Mut. Ins. C0,, No. 2:07-cv-1121, 2009 WL 3150328, at *3—4 (S.D. Ohio Sept. 30, 2009) (attached as
`Exhibit B); Static Control Components, Inc. v. Lexmark lnt’l, 1nc., Nos. 5:02-571 and 5:04-84, 2007 WL 7083655,
`at *l4-16 (E.D. Ky. May 12, 2007) (attached as Exhibit C).
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`2
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`critique Dr. Simonson’s survey and report.3 McNeil did neither of those things. As such, Dr.
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`Simonson’s testimony stands unrebutted by anyone qualified or educated in the field.
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`2.
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`Dr. Simonson’s Survey and Testimony are Reliable and
`Relevant/Probative
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`Instead of relying on a market researcher, and with no empirical evidence of its own,
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`McNeil assembled a laundry list of ten (10) different arguments to support its request for
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`exclusion of Dr. Simonson’s survey. Arguing the “Report is flawed in numerous respects”
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`(Objections p. 2), McNeil could not point to one fatal flaw in the survey, but rather argued
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`everything it could think of with the hope that something would stick.4 In doing so, it ignored
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`the well-settled principle that any deficiencies in a survey generally go to its weight, not its
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`admissibility. See, e. g., Wendt v. Host Int’l, Inc., 44 U.S.P.Q.2d 1189, 1194 (9th Cir. 1997);
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`Mobil Oil Corp. v. Pegasus Petroleum Corp., 2 U.S.P.Q.2d 1677, 1681 (2d Cir. 1987);
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`Prudential Ins. Co. v. Gibraltar Fin. Corp, 217 U.S.P.Q.l097, llO0-01 (9th Cir. 1982).
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`Significantly, moreover, McNeil’s arguments are not supported by cases or even market research
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`guidelines. That is not surprising since, as explained below, Dr. Simonson’s survey is well-
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`supported by precedent.
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`(2)
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`T1145- Survey Universe Was Proper
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`McNeil argues that Dr. Simonson’s universe was improper due to a “mismatch” between
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`certain demographic data for the respondents vs. the actual purchasers of the goods. More
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`specifically, McNeil stated “the typical” over—the—counter allergy medicine purchaser is a woman
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`3 Walgreens served Dr. Simonson’s report on July 7, 2009 and it was received by McNeil the next day. The parties
`agreed that, if desired, McNeil could have an additional 30 days to disclose a rebuttal expert. In emails between
`counsel dated July 29 and 30, 2009, it was agreed to move this rebuttal deadline until 20 days after the deposition of
`Dr. Simonson, or to October 21, 2009. Thus, McNeil had 105 days after it received Dr. Simonson’s report and 20
`days after it deposed Dr. Simonson to produce a rebuttal report.
`4 McNeil’s list includes the following: (1) improper universe; (2) inappropriate control; (3) survey did not test for all
`types of confusion at issue; (4) improper administration; (5) potentially improper testing locations; (6) confusing
`compound questions; (7) open-ended questions with no clear instructions for follow—up; (8) inadequate evidence of
`survey certification; (9) discrepancies in survey verification; and (10) inaccurate analysis of survey results.
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`3
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`in her mid—forties with children under age 18. (Objections p. 2.) However, McNeil cites no real
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`data to support this conclusion. McNeil cited to a report prepared by Pfizer for the purpose of
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`helping develop shopper programs and the like to motivate shoppers to buy over—the—counter
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`REDACTED
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`Even if the Board accepts McNeil’s unsupported assertion that the “typical” shopper is a
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`woman in her mid—forties with children under 18, McNeil’s objection to the Dr. Simonson survey
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`on the basis that only about 15% of the survey respondents were women in the age range of 35-
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`49 is unfounded. (Objections p. 2.) McNeil argues, in effect, that because of this so—called
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`“mismatch” Dr. Simonson’s universe was “overinclusive” (i.e., it included people outside the
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`group that should have been surveyed). McNeil cites case law for the general proposition that a
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`5 lnterestinl , McNeil’s su osed “t
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`ical” sho er is also belied b McNeil’s other evidence in this matter.
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`REDACTED
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`skewed universe results in a skewed conclusion. (Objections p. 3.) But it cites no authority to
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`support the argument that a discrepancy between demographics of actual purchaser data vs. the
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`pool of respondents skews a survey (let alone requires its exclusion).
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`In fact, as the Report explains, the universe defined for the study included adult males
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`and females, 18 years of age or older, who purchased in the past six months, or were likely to
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`purchase in the next six months, an over-the-counter allergy relief medication.6 As Dr.
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`Simonson testified, for most disposable goods or frequently purchased products, six months past
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`or six months future is a very common time frame to use when defining a universe. (Joint
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`Stipulation Regarding Trial Testimony, May 10, 2011, Ex. C 3 1 :4—8 (designating portions of Dr.
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`Simonson’s discovery deposition into the record; hereafter referred to as “Simonson Dep. Ex. _
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`[page]:[line]”)). That is especially the case with respect to allergy medicine, since the screening
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`will capture those who suffer from fall, winter, or spring allergies.
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`Ia’. Indeed, using a universe
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`such as the one Dr. Simonson used is commonplace. See, e. g., Anheuser—Busch, Inc. v. Mambo
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`Seafood #1, Inc, No. 91160250, 2008 WL 4674603, at *7 (T.T.A.B. Sept. 22, 2008) available at
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`http://ttabvue.uspto.gov/ttabvue/v?pno=91 l60250&pty=OPP&eno=68 (relevant universe was
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`“those individuals who had purchased beer within the preceding 30 days or who were likely to
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`purchase beer within the following 30 days”); Gateway Inc. v. Companion Products Inc., 68
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`U.S.P.Q.2d 1407, 1418 n.2 (D.S.D. 2003) (relevant universe was individuals who had purchased
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`personal computer accessories in the past 12 months or who intended to buy personal computer
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`accessories in the next 12 months). Further, the survey used “screening quotas”—a well-
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`accepted method of sampling—~based on data from the U.S. Census Bureau. (Report p. 6.) As
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`6 Screening questions excluded certain potential respondents due to potential bias, such as people who are employed
`in the marketing research field, doctors, pharmacists, and the like, as is more fully explained in the Report pp. 4-5.
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`5
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`such, the survey was not skewed toward any particular age group or gender, but rather based on
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`reliable data to obtain a representative mix of respondents.
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`In any event, whether a survey universe is “overinclusive” or “underinclusive” is a factor
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`that generally goes to the survey’s weight, not admissibility. See Shari Seidman Diamond,
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`Reference Guide on Survey Research, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 242
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`(Fed. Judicial Center 2000), available at
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`http://www.fie.gOv/public/pdfnsf/lookup/sciman00.pdf/$file/sciman00.pdf (“An overinclusive
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`universe generally presents less of a problem .
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`.
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`. than an underinclusive universe”); 6 J.
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`THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 32:162 (2010)
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`(“The selection of an inappropriate universe generally affects the weight of the resulting survey
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`data, not its admissibility”); Fort James Corp. v. Kimberly Clark Tissue C0., 1999 WL 966144,
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`at *19, n. 6 (N.D. Ill. Oct. 8, 1999) (attached as Exhibit D) (concluding that when compared to a
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`survey with an underinclusive universe, an overbroad survey presents less of a problem);
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`Schiejfelin & Co. v. Jack C0. 0fB0ca, Inc., 31 U.S.P.Q.2d 1865, 1875 (S.D.N.Y. 1994) (although
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`universe was “somewhat overbroad,” “such imperfections. . .are not fatal, but are factored into
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`the weight that should be given to the evidence”).
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`(b)
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`“WAL-ZEE” Was an Appropria te Control
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`Citing no authority or market research guidelines, McNeil criticizes Dr. Simonson’s
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`selection of “WAL—ZEE” as a control.
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`The purpose of a control has been likened to putting a criminal suspect in a line—up of
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`others. Dr. Simonson testified that in selecting a control, he tries to “pick something that’s
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`reasonably close to the test [mark], but absent the alleged infringing elements.” (Simonson Dep.
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`Ex. A 40:21-23.)
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`

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`McNeil argues that “WAL-ZEE” was inappropriate because it “emphasizes ‘Z’”, and
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`therefore “could itself be a source of confusion. . ..” (Objections p. 3.) But McNeil does not go so
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`far as to allege that the control “WAL—ZEE” would infringe on the mark “ZYRTEC,” simply
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`because “WAL—ZEE” contains the letter “Z.” Likewise, no where does McNeil suggest that any
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`mark containing a “Z” and six letters would necessarily infringe on “ZYRTEC.”7
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`Here, without the letter “Z”, the control would have failed in its essential purpose:
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`namely, to ascertain the noise level. See, e. g., 24 Hour Fitness USA, Inc. v. 24/7 Tribeca Fitness,
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`LLC, 447 F. Supp. 2d 266, 280 (S.D.N.Y. 2006), afi"d, 247 Fed. Appx. 232 (2d Cir. 2007)
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`(attached as Exhibit E) (court criticized the control mark LIFETIME FITNESS in a survey
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`seeking to evaluate the likelihood of confusion between 24 HOUR FITNESS and 24/FITNESS,
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`commenting that a mark such as THE 24 HOUR GYM would have detected those who thought
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`there was a connection due to the gym being open 24 hours regardless of the similarity level of
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`the conflicting marks).
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`In the circumstances, “WAL-ZEE” performed exactly as a control should—it determined
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`the level of noise, or guessing to “ZYRTEC” from the letter “Z” alone——~putting aside (for the
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`test cell) the question of likelihood of confusion from the inclusion of “ZYR” at the end of
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`“WAL—ZYR.”
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`(c)
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`Tbe Survey Questions Were Probutive oftbe Issues and Not
`Confusing
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`McNeil criticizes the survey questions on two grounds, namely: (1) they did not test for
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`all types of confusion at issue in this proceeding (Objections pp. 3-4), and (2) they were
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`compound and therefore confusing (Objections pp. 6-7).
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`7 Notably, McNeil does not identify any alternative controls it believes would have functioned better than “WAL-
`ZEE”.
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`

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`First, McNeil cites no authority for its proposition that every survey must test for every
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`type of confusion imaginable. McNeil did not allege any special or unique type of confusion
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`here. Instead, its Notice of Opposition generally stated that WAL—ZYR “is likely to cause
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`confusion, cause mistake or deceive consumers, and cause them to believe that the goods offered
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`under Applicant’s WAL—ZYR mark emanate from, or are sponsored by, manufactured by,
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`endorsed by or otherwise connected with Opposer, in violation of Section 2(d) of the Lanham
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`Act, 15 U.S.C. § 1052(d).” (Not. of Opp. p. 4, 1} 25.)
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`Second, Dr. Simonson’s survey employed the widely accepted Ever—Ready
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`methodology.8 (Report p. 2.) See Anheuser-Busch, Inc. v. Mambo Seafood #1, Inc., No.
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`91160250, 2008 WL 4674603, at *9 (T.T.A.B. Sept. 22, 2008) available at
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`http://ttabvue.uspto.gov/ttabvue/v?pno=91160250&pty=OPP&eno=68 (characterizing the Ever-
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`Ready format as “often approved” and finding the survey reliable and probative); Starbucks U.S.
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`Brands, LLC et al. v. Ruben, 78 U.S.P.Q.2d 1741, 1753 (T.T.A.B. 2006) (survey that followed
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`Ever~Ready was reliable and of probative value).
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`Dr. Simonson’s report states that it sought to determine confusion as to source, affiliation,
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`and authorization/permission. (Report p. 2.) This is reflected in the questions asked of
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`respondents. (Report App. B.) Thus, the questions in the survey were probative of the issues at
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`hand. See Starbucks U.S. Brands, LLC et al. v. Ruben, 78 U.S.P.Q.2d 1741, 1753 (T.T.A.B.
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`2006) (noting that leading commentator McCarthy suggests, and courts have found, that
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`affiliation and connection questions——~such as those used in the Ever—Ready fo1“mat——are
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`appropriate in light of the specific language of the Lanham Act).
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`8 The survey offered in the seminal case of Union Carbide Corp. v Ever—Ready, Inc., 188 U.S.P.Q. 623 (7th Cir.
`1976) tested for confusion between different products, namely, batteries and flashlight bulbs. Since then, the
`underlying Ever-Ready format (showing respondents the defendant's or applicant’s mark as the stimulus in the test
`cell) has been adopted for use in surveys evaluating confusion between goods of the same type, such as in this case.
`See, e.g., NFL v. Wichita Falls Sportswear, Inc., 215 U.S.P.Q. 175 (W.D. Wash. 1982).
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`8
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`

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`Dr. Simonson also followed TTAB precedent in implementing the Ever—Ready format,
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`such as the use of stimuli consisting of plain cards containing only the Applicant’s mark (for the
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`test cell) and the control mark (for the control cell), each appearing above the product category
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`(here, “Allergy medications”). (Report App. F.) See, e. g., Anheuser—Busch, Inc, 2008 WL
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`4674603 at *8; Miles Laboratories Inc. v. Naturally Vitamin Supplements Inc., 1 U.S.P.Q.2d
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`1445, 1459-60 (T.T.A.B. 1986). Dr. Simonson’s survey methodology is judicially accepted by
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`courts as well as the TTAB and should be deemed probative of the issues presented here.
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`The survey questions employed by Dr. Simonson followed established precedent and are
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`not confusing. Citing no authority or market research guidelines, McNeil argues that Dr.
`73 CC
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`Simonson’s use of phrases such as “makes or puts out,
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`products or brands,” and “affiliated
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`with or authorized by” renders the questions and answers ambiguous. (Objections p. 6.) But
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`these same phrases have been judicially accepted repeatedly. Asking what individual, company,
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`or organization “makes or puts out” a product has even been called “standard methodology” in
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`trademark surveys. U.S. Polo Ass ’n Inc. v. PRL USA Holdings Inc., No. 09 Civ. 9476, _
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`U.S.P.Q.2d _, 2011 WL 1842980 at *15 (S.D.N.Y. May 13, 2011) (attached as Exhibit F); see
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`also Gateway Inc. v. Companion Products Inc., 68 U.S.P.Q.2d 1407, 1418 (D.S.D. 2003)
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`(finding the following question (among others) “not slanted or leading”: “Based on what you
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`just saw, do you or do you not have a belief as to who or what company or companies makes or
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`puts out the product in the picture I just showed you?”) (emphasis added). Likewise, in
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`Anheuser—Busch, Inc, 2008 WL 4674603 at *8—9, the TTAB found a survey reliable and
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`probative on the issue of likelihood of confusion where questions included the following, among
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`others: “Do you believe that the company that makes or puts out the beer shown on this card
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`makes or puts out any other products or brands?” and “If you have an opinion, do you believe
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`that the beer shown on this card is or is not made or put out with the approval or sponsorship of
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`any other company or brand” (emphasis added in each). These questions are similar to those in
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`Dr. Simonson’s survey. (Report App. B.)
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`(d)
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`The Survey Was Properly A dministered and Interviewers
`Were Instructed to Probe When Appropria te
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`In support of its claim of improper administration, McNeil points to one single interview
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`sheet that indicated one interviewer may have improperly recorded, for one respondent, whether
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`that person fell in the test cell or control cell. (Objections p. 5.) Dr. Simonson testified that the
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`survey employed certain stop—gap measures to prevent such an occurrence; although somehow
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`“one got through,” “[t]here’s no indication to suggest it’s more than one.” (Simonson Dep., Exs.
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`A & C 109:2-11 1:25.) Certainly even if one such error did occur——out of 404 completed
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`surveys—it would go to the survey’s weight and not admissibility.9
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`Citing no authority or market research guidelines, McNeil argues that interviewers were
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`not properly instructed relative to probing. (Objections pp. 5, 7.) However, Dr. Simonson
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`testified that generally in his studies, interviewers in their discretion are advised to probe for
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`clarity or ambiguity, or to probe when an answer was not clear to them. (Simonson Dep., Ex. A
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`69:2-70:16.) While McNeil argues the instructions to interviewers were not clear on this point
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`(Objections p. 7), the written interviewer instructions speak for themselves and show the
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`opposite. (Report App. C.) Indeed, the instructions (p. 2) relative to “Open—Ended Questions”
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`clearly state: “. . .YOU SHOULD BE SURE TO PROBE IF A THOUGHT IS NOT CLEAR
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`OR COULD BE INTERPRETED DIFFERENT WAYS.” (capitalization, underlining, and
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`bold in original), followed by another whole section entitled “Probino,” which states essentially
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`the same. (Report App. C, p. 2.)
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`9 As the TTAB has stated, “[C]0u1ts and this Board have long recognized that there is no such thing as a perfect
`survey....” An/zeuser-Busch, lne., 2008 WL 4674603 at *9.
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`10
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`

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`Dr. Simonson’s survey was conducted by impartial interviewers and responses were
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`recorded verbatim. McNeil has not pointed to any pattern of errors nor has it identified any
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`serious questions as to the survey’s inherent reliability. Its argument that the survey’s
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`administration was suspect should be rejected.
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`(e)
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`Tlie Survey Was Conducted in Acceptable Testing Locations
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`The survey was conducted in twelve enclosed regional malls with large anchor stores like
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`Nordstrom or Sears. (Simonson Dep., Ex. A l 12:7-22). McNeil hypothesizes that if the malls
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`housed Walgreens stores, the universe of respondents could have been improperly skewed due to
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`the inclusion of loyal Walgreens customers or others “overly familiar with Walgreens’ house
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`brand products.” (Objections p. 6.) This argument is based on pure conjecture.
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`REDACTED
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`(I)
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`Tbe Survey Was Properly Certified and Verified
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`Citing no cases or market research guidelines, McNeil argues that there is inadequate
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`evidence of survey certification, and that the survey was not properly verified.
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`Certification pages are completed with respondents’ contact information during the
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`interview process, and then signed by the respondents. The respondents’ personal information
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`was redacted on the certification pages produced by Dr. Simonson. McNeil therorizes that such
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`redaction must have been done to hide problems with the certification process. However, it does
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`not point to any evidence suggesting any problem with certifications. Moreover, survey research
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`guidelines recommend that researchers such as Dr. Simonson maintain the anonymity of
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`11
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`

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`respondents. See 6 MCCARTHY § 32:l83 (2010) (citing Diamond, supra at 271-72; Code of
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`Ethics of the Marketing Research Association R. 3; Council of American Survey Research
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`Organization, Code of Standards for Survey Research, Parts I.A.l. and I.A.3.e. (Feb. 1984);
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`among other survey guideline authorities/sources).
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`McNeil also complains that only 67% of the respondents were recontacted for the
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`purpose of validation. As Dr. Simonson testified, however, a 67% validation rate is quite high.
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`(Simonson Dep., Ex. A 33:21—34:3.) Indeed, “[t]he standard procedure for validation of in-
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`person interviews is to telephone a random sample of about 10% to 15% of the respondents,”
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`although in surveys for litigation, validating at least 50% of interviews “increases the
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`trustworthiness of the survey results.” Diamond, supra at 267 and cases cited therein.
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`McNeil argues that Dr. Simonson testified there were “systematic problems in the
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`survey” because two (2) respondents denied during the validation process that they qualified for
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`the study. (Objections p. 8, n. 4.) McNeil complains that Dr. Simonson inappropriately
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`attempted to change his testimony on this point on an errata sheet. However, a review of Dr.
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`Simonson’s testimony in context makes it clear to any reader that Dr. Simonson either simply
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`misspoke or that the stenographer mistook his testimony. 10 (Simonson Dep., Ex. A 34:2—20.)
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`'0 While a deponent is generally not permitted to make material changes to testimony through an errata sheet, here
`Dr. Simonson’s testimony was simply missing the word “not.” It is commonplace for stenographers to miss a single
`word, including a word such as “not”.
`It is abundantly clear from the surrounding testimony that Dr. Simonson
`meant “not systematic problems.” While the surrounding testimony was not designated as part of the trial record,
`given the nature and tone of McNeil’s arguments on this point, in all fairness the Board should be permitted to
`consider the context of the statement at issue. Therefore, it is attached hereto as Exhibit G. Regarding McNeil’s
`argument that the errata sheet was not provided in a timely manner, McNeil’s attorney Laura Popp—Rosenberg
`consented to an extension of such production while the proceedings were suspended. Such consent was given
`during a telephone conversation with Walgreens’ attorney Caroline Stevens. McNeil never expressed any objection
`to the errata sheet based on timeliness prior to its trial Objections. Moreover, Walgreens agreed to McNeil’s own
`request for an extension to provide its own witness’s errata sheet to Walgreens. Regardless of whether the Board
`will consider the errata sheet, as Dr. Simonson testified, at 67% validation rate is quite high and there is no basis to
`suggest the survey was not properly validated.
`
`12
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`

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`Moreover, it has been recognized in the field of market research that a few discrepancies
`
`in validation do not affect the reliability of the interview process: “Some attempts to reach the
`
`respondent will be unsuccessful, and occasionally a respondent will deny that the interview took
`
`place even though it did. Because the information checked is limited to whether the interview
`
`took place and whether the respondent was qualified, this validation procedure does not
`
`determine whether the initial interview as a whole was conducted properly.” REFERENCE
`
`MANUAL ON SCIENTIFIC RESEARCH 267. As stated in the Report, p. 10, the two respondents who
`
`failed to validate were removed from the data set. McNeil’s argument on this point is not
`
`supported by law or authorities in the field and it should be rejected.
`
`(g)
`
`Dr. Simonson ’s Analysis ofthe Survey Data Was Reliable and
`is Unrebutted by Any Qualified Market Researcher
`
`McNeil complains that Dr. Simonson’s analysis of the survey data was questionable and
`
`flawed. For example, McNeil characterizes Dr. Sim0nson’s coding of the data as “shoddy”
`
`because he manually counted the number of confused respondents vs. not confused respondents.
`
`(Objections p. 9.) McNeil fails to fully explain why the method employed by Dr. Simonson is
`
`“shoddy”—it seems to argue that simply because the method is hand-counted, it must be
`
`unreliable and unverifiable. However, McNeil does not point out that when Dr. Simonson
`
`repeated his hand-counting method, he counted “the same exact number of respondents.”
`
`(Simonson Dep., Ex. A 95:25-96:3.) Dr. Simonson is a respected expert who personally
`
`tabulated the results, and McNeil fails to articulate why this is “shoddy” work.
`
`McNeil then points to two (2) respondents——Nos. 26908 and 9lO44~—that McNeil
`
`believes should have been counted as having been confused, but were not. (Objections pp. 10-
`
`ll.) But even if Dr. Simonson had coded those two persons as confused, the confusion rate
`
`would have only risen to 4.5% from 3 or‘3.5%—remaining far less than the probative threshold
`
`13
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`

`
`for confusion. Moreover, Dr. Simonson is a highly qualified and experienced survey researcher,
`
`(Report App. A), and he coded each respondent using his own best judgment. When he repeated
`
`his initial analysis, he counted the same exact number of respondents. (Simonson Dep., Ex. A
`
`95:17-96:3.) No one in the field has rebutted his analysis. Here, again, McNeil’s arguments fail.
`
`3.
`
`Dr. Simonson’s Survey is Reliable and Probative and Should be
`Admitted into Evidence
`
`In sum, Dr. Simonson’s survey and testimony should be deemed admissible. Dr.
`
`Simonson’s qualifications are not in doubt. His survey followed the well-accepted Ever-Ready
`
`methodology for TTAB cases. The survey employed an appropriate control to gauge for noise.
`
`The questions in the survey were not confusing, and the phrases used therein appear in questions
`
`that have been accepted in other cases. The survey was administered according to reliable
`
`standards typically used in the field of market research. The interviewer instructions were clear
`
`and the responses recorded verbatim. The validation rate was high. The responses were
`
`analyzed and categorized according to Dr. Simonson’s best judgment. Even if there are any
`
`perceived problems with the survey, they should go to its weight, not its admissibility. The
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`survey provided by Dr. Simonson is supported by precedent, reliable, and probative of the issues
`
`in this case. It should not be excluded.
`
`B.
`
`Exhibits 19, 23-25 to Robert Tompkins’ Testimony Are Admissible
`
`McNeil is attempting to exclude Exhibits 19, 23-25 from the record. However, these
`
`Exhibits are properly authenticated and identified and should be allowed.
`Exhibit 19 is a grouping of selected pages from many Walgreens “Roto” advertisements
`
`through the years. (Deposition of Robert Tompkins, 73: 1-3, 73:20-24, 74: 1-4, Mar. 28, 2011.)
`
`McNeil argues these documents were not properly authenticated because Mr. Tompkins said he
`
`“believe[d]” they were true and correct copies, rather than simply saying they were. (Opp. Stmt.
`
`14
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`

`
`Obj. p. 11; Tompkins Dep. 74: 1-4.) These documents were properly authenticated. Mr.
`
`Tompkins is stating his understanding, or his belief, that the documents are a true and collect
`
`collection of copies of Roto advertisements over the years. This meets the requirements of the
`
`Rules. See Fed. R. Evid. 803(6). Moreover, this is an objection regarding the authentication of
`
`an exhibit, which is waived if not raised during the deposition. See TBMP § 707.03(c); Rocket
`
`Trademarks Pty Ltd. v. Phard S.p.A., 98 U.S.P.Q.2d 1066, 1070 (T.T.A.B. 2011). As counsel for
`
`McNeil did not object to the submission of this Exhibit during the testimony deposition of Mr.
`
`Tompkins, this objection is waived.
`
`Exhibits 23-25 are collections of customer comments from Walgreens’ files. McNeil
`
`objects to these exhibits and its related testimony, essentially on the basis that Mr. Tompkins did
`
`not search the customer comments database himself. (Opp. Stmt. Obj. p. 11-12.) However, Mr.
`
`Tompkins, in his position as Divisional Vice President and General Merchandise Manager of
`
`Health and Wellness, recognized the reports on sight and could identify them. (Tompkins Dep.
`
`85:13-16, 87:5-7, 88:21-24.) He stated his belief that the record appeared true and correct and
`
`unedited. (Tompkins Dep. 86: 14-18 (“Q: And is Exhibit 23 true and correct copies of
`
`these
`
`types of reports about product quality. . .? A: That’s correct”); Tompkins Dep. 88:6-8, 8924-8.)
`
`Even if he did not perform the searches themselves, he can attest that these records are true and
`
`correct copies of customer comments. See Fed. R. Evid. 803(6). Walgreens also suggests
`
`McNei1’s issue is more akin to a procedural issue — relating to the authentication of the
`
`documents — rather than a substantive one and thus has been waived by not having been made at
`
`the time of the testimony deposition. See TBMP § 707.03(c); Rocket Trademarks Pty Ltd. v.
`
`Phard S.p.A., 98 U.S.P.Q.2d 1066, 1070 (T.T.A.B. 2011).
`
`15
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`

`
`II.
`
`Applicant’s Statement of Objections to Opposer’s Evidence
`
`A.
`
`The Declaration of Giselle Woo and Exhibits Thereto Should Be Stricken
`
`Walgreens seeks to exclude the Declaration of Giselle W00 (“W00 Declaration”) and
`
`Exhibits thereto. The Woo Declaration merely attempts to authenticate the documents attached
`
`in the Exhibits thereto, declaring that Ms. Woo searched on Westlaw for various terms and time
`
`periods. The Woo Declaration Exhibits (“Woo Exhibits”) are the search result lists from those
`
`searches. The Woo Exhibits are no more than search result lists, offering just the information on
`
`the publication and a short clip of the reference to the searched terms. There is no context for the
`
`references listed, and no way to identify if this is a paid advertisement, a news entry, or
`
`something different. To assist the Board in understanding the nature of the hit results, and by
`
`way of example, see the following references:
`
`8235
`
`
`
`102
`
`McNeil 002408
`
`McNeil 002700
`McNeil 003131
`
`102
`102
`
`103
`
`
`
`
`
`
`McNeil 004012
` McNeil 004474
`
` McNeil 005761 108
` McNeil 005941 Paid advertisement for commercial that aired
`during evening programming__
`
`
`
`>—t O\ 00 U3
`
`Reference appears to be:
`Paid advertisement for closed captioning
`Hoover’s database record for UCB S.A.
`
`Paid advertisement for commercial that aired
`
`during morning_pro rammin
`
`Reference in news report to expiring patents on
`medications including__Zyrtec, and Ambien
`News report of an individual charged with
`possessing various drugs with an intent to
`distribute, including Zyrtec, OxyContin, and
`hydrocodone
`
`
`
`
`
`News article discussing a new Mississippi law
`requiring a prescription for certain cold
`medicatio