Trademark Trial and Appeal Board Electronic Filing System. httgj/estta.usQto.gov
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`91204296
`
`Plaintiff
`JJI International, Inc.
`CRAIG M SCOTT
`SCOTT BUSH LTD
`ONE TURKS HEAD PLACE 4TH FLOOR
`PROVIDENCE, RI 02903
`UNITED STATES
`
`cscott@scottbush|aw.com, smcgurk@scottbush|aw.com,
`pstroke@scottbush|aw.com
`
`Testimony For Plaintiff
`
`Craig M. Scott
`
`cscott@scottbush|aw.com, erenner@scottbush|aw.com,
`smcgurk@scottbush|aw.com,pstroke@scottbush|aw.com
`
`/Craig M. Scott/
`01/13/2014
`
`Notice of Filing Testimony — Fong.pdf(31815 bytes )
`Declaration of Dr. Geoffrey Fong.pdf(4546131 bytes)
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA581475
`ESTTA Tracking number:
`01/13/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91204296
`Plaintiff
`JJI International, Inc.
`CRAIG M SCOTT
`SCOTT BUSH LTD
`ONE TURKS HEAD PLACE 4TH FLOOR
`PROVIDENCE, RI 02903
`UNITED STATES
`cscott@scottbushlaw.com, smcgurk@scottbushlaw.com,
`pstroke@scottbushlaw.com
`Testimony For Plaintiff
`Craig M. Scott
`cscott@scottbushlaw.com, erenner@scottbushlaw.com,
`smcgurk@scottbushlaw.com,pstroke@scottbushlaw.com
`/Craig M. Scott/
`01/13/2014
`Notice of Filing Testimony - Fong.pdf(31815 bytes )
`Declaration of Dr. Geoffrey Fong.pdf(4546131 bytes )
`
`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
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`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Appl. Ser. No.: 85356064
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`Opposition No.: 91204296
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`JJI INTERNATIONAL, INC.
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`v.
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`Opposer,
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`SPARKLE LIFE, LLC
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`Applicant.
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`___________________________________________________________________________
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`NOTICE OF FILING OF TESTIMONY
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`
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`TO: Thomas E. Toner
`
`Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
`
`215 North Eola Drive
`
`Orlando, Florida 32801
`
`tom.toner@lowndes-law.com
`
`Sven W. Hanson
`PO Box 357429
`Gainesville, Florida 32635-7429
`swhanson@bellsouth.net
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`Pursuant to Trademark Rule of Practice 2.123(b) and 2.125 and TBMP 703.01(b),
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`Opposer, JJI International, Inc. (“JJI”), hereby files with the Trademark Trial and Appeal Board
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`the testimony declaration of Dr. Geoffrey T. Fong, Ph.D., along with the Expert Report of Dr.
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`Geoffrey T. Fong, Ph.D. attached thereto as Exhibit 1.
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`A copy of said declaration and exhibit are enclosed and thereby served upon you.
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`you.
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`JJI INTERNATIONAL, INC.
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`By: /Craig M. Scott/
`
` Craig M. Scott, Esq.
` SCOTT & BUSH LTD.
` One Turks Head Place, 4th Floor
` Providence, RI 02903
` Phone: (401) 865-6035
` Fax: (401) 865-6039
` Email: cscott@scottbushlaw.com
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` Attorney for Opposer
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`Dated: January 13, 2014
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`2
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing Notice of Filing of
`Testimony has been served on counsel to Sparkle Life LLC by sending said copy on January 13,
`2014 via electronic mail and First Class Mail, postage prepaid to:
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`
`
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`Sven W. Hanson
`PO Box 357429
`Gainesville, Florida 32635-7429
`swhanson@bellsouth.net
`
`Thomas E. Toner
`Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
`215 North Eola Drive
`Orlando, Florida 32801
`tom.toner@lowndes-law.com
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`/s/ Craig M. Scott/
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Appl. Ser. No.: 85356064
`
`Opposition No.: 91204296
`
`
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`JJI INTERNATIONAL, INC.
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`
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`Opposer,
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`v.
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`SPARKLE LIFE, LLC
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`Applicant.
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`___________________________________________________________________________
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`DECLARATION OF DR. GEOFFREY T. FONG
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`I, Dr. Geoffrey T. Fong, Ph.D., under oath depose and state as follows:
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`
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`1.
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`2.
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`I am a Professor of Psychology at the University of Waterloo, Canada.
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`My experience includes designing and implementing a wide variety of surveys—
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`such as face-to-face surveys, mall intercept surveys and web-based surveys—across a broad
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`range of populations throughout the United States and the world. I apply my 30 years of
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`experience as an academic, a researcher and as a social psychologist to the implementation of
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`trademark surveys, including likelihood of confusion, secondary meaning and genericness
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`surveys.
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`3.
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`I have been retained by Opposer, JJI International, Inc. (“JJI”) to provide expert
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`testimony in this case concerning the likelihood of confusion between JJI’s SPLASHES &
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`SPARKLES® mark and Applicant, Sparkle Life, LLC’s (“Sparkle Life”) SPARKLE LIFE mark.
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`4.
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`On January 3, 2013, I issued the attached expert report, the contents of which are
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`specifically incorporated herein. (The Expert Report of Dr. Geoffrey T. Fong, Ph.D. (the “Fong
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`Report”) is attached hereto and incorporated herein as Exhibit 1.)
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`

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`5.
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`As detailed in my report, after conducting a trademark likelihood of confusion
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`survey that I designed, it is my expert opinion that there is a likelihood of consumer confusion
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`between JJP5 federally registered trademark, SPLASHES & SPARKLES®, and Sparkle Life’s
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`junior mark, SPARKLE LIFE. Specifically, it is my expert opinion that there exists a
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`statistically significant rate of likelihood of consumer confusion of 16.5 % between the
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`SPLASHES & SPARKLES® and SPARKLE LIFE brands ofjewelry products. (Fong Report at
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`15.)
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`I declare under penalty of perjury that the foregoing
`is true and correct.
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`
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`Dated: January 1, 2014
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`

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`EXHIBIT 1
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`EXHIBIT 1
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`

`
`Geoffrey T. Fong, Ph.D.
`
`January 3, 2013
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`© Geoffrey T. Fong 2013
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`Contact Information:
`
`Professor Geoffrey T. Fong
`Department of Psychology
`University of Waterloo
`
`200 University Avenue West
`
`Waterloo, Ontario N2L'3G1 Canada
`
`Email: gfong@uwaterloo.ca
`
`

`
`tenure, in the Department of Psychology and in the School of Public Health and Health
`Systems. in 2007, l was the first researcher to be awarded the position of Senior investigator at
`the Ontario institute for Cancer Research, which is significant in that the OlCR is mostly an
`institute of biomedical research on cancer, whereas i was awarded the position based on my
`work in behavioral research in cancer prevention. The Senior Investigator Award included a
`discretionary research fund of $1.4 million over 5 years. in May 2012, my Senior investigator
`Award was renewed for another 5 years (2012-17), including another $1.4 million discretionary
`grant.
`
`Over the past 30 years as a researcher, i have led or been a team member of a diverse set of
`research programs. I have conducted lab and field experiments and surveys relating to human
`judgment and decision-making in everyday life, multi-method evaluation studies of the impact of
`behavioral interventions to reduce risky sexual behavior among youth, experiments (lab and
`field) and surveys on the impact of alcohol intoxication on important social behaviors such as
`drinking and driving and risky sex, the impact of media depictions of smoking on promoting
`favorable attitudes toward smoking among smokers and among non-smokers, studies on
`environmental tobacco smoke (including air quality monitoring, biomarkers of tobacco smoke
`uptake, and surveys), and many other domains of health behavior.
`
`I am the Founder and Chief Principal Investigator of the international Tobacco Control Policy
`Evaluation Project (the ITC Project), a large international collaboration of over 100 researchers
`across 22 countries who have come together to conduct parallel cohort (longitudinal) surveys of
`adult smokers in these 22 countries to evaluate the psychosocial and behavioral impact of
`national level tobacco control policies of the World Health Organization Framework Convention
`on Tobacco Control (FCTC), the worid’s first health treaty, which has been ratified by over 170
`countries. The ITC Project is the (_m_|y research project that is conducting cross—country
`evaluation of the impact of the treaty throughout the world and is designed to contribute to the
`evidence base for policymakers across the 170+ countries, which seek evidence to guide their
`selection and implementation of strong tobacco control policies in their fulfillment of their
`obligation under the F CTC. As a result, ITC Project findings have been in high demand.
`
`I have published over 170 journal articles, including articles appearing in Science, Journal of the
`American Medical Association, American Journal of Public Health, Cognitive Psychology,
`Journal of Experimental Psychology, Tobacco Control) and close to 500 presentations at
`scientific meetings, university colioquia, and po|lcy~making forums, including over 80 invited
`talks. i have contributed to important government reports, of which much of the relevant
`research (including my own) has involved survey research. These include contributions to the
`2007 report by the institute of Medicine, Ending the Tobacco Problem: A Blueprint for the
`
`JJI v Sparkle Life Survey—Final Report—.lanuary 3, 2013
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`Page 2 of 19
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`

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`Control. I have also presented the findings of our research to health ministers and other high-
`level governmental officials, as well as parliamentarians and policymakers throughout the world,
`I have also been an expert consultant to policy organizations, including the WHO, and to
`governments (including Canada, the United States, United Kingdom, Australia, Uruguay, China,
`Mauritius, and Bangladesh). The ITC Project is consulting with the U.S. Food and Drug
`Administration on evidence relevant to the FDA's new regulatory authority over tobacco
`products, as granted by the Family Prevention and Tobacco Control Act, which was signed by
`President Obama in 2009. I have made similar high~|evel contributions to policy in Canada. In
`December 2010, I testified at the Health Standing Committee of the House of Commons
`regarding the postponement of the revision of Canada's graphic warning labels, which had not
`been revised since 2000. I presented evidence from our ITC Canada Survey showing the
`declining impact of the Canadian warnings over the last 7 years. Three weeks later, the Health
`Minister reversed her initial decision, and as a result, revised warnings have now been
`introduced in Canada.
`
`I have won major awards for my research. In addition to the Senior investigator Award from the
`Ontario Institute for Cancer Research, described above, I and 2 colleagues won an inaugural
`Top Canadian Achievement in Health Research Award in 2009 from the Canadian Institutes for
`Health Research and the Canadian MedicalAssocr’atlon Journal for the ITC Project. in 2011, l
`was awarded a prestigious five-year Prevention Scientist Career Award from the Canadian
`Cancer Society Research Institute, which provides for a five—year period (2011-2016) free of
`teaching obligations at the University of Waterloo; this Award is designed to allow me to pursue
`my research program full-time; the Award also provides a research fund of $250,000 over the 5-
`
`year period. In November 2011, I received the prestigious Canadian institutes of Health
`Research Knowledge Translation Prize, described as follows: “The CIHR Knowledge
`Translation Prize honours and supports the exemplary knowledge translation efforts and
`activities of an exceptional individual, team or organization that has made an outstanding
`contribution to increasing the application of research findings, improving the health of
`individuals, improving health services and products, or strengthening the hea|th~care system." In
`May 2012, I received another national award—the Lise Manchester Award—from the Statistical
`
`Society of Canada. This award recognized the “unique and historic research effort" of the lTC
`Project, whose "rigor of statistical design has contributed greatly to its value to countries
`throughout the world in promoting evidence~based policies in tobacco control.”
`
`I have been very successful in obtaining grant funding for the iTC Project Survey research. I
`have been the Principal investigator, Co-Principal Investigator, or Co-Investigator for over 30
`grants, totaling over $50 million. These grants have included the largest operating grant (open
`competition) from the Canadian Institutes of Health Research, several major grants from the
`
`
`JJl v Sparkie Life Survey—Fina| Report—January 3, 2013
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`.
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`Page 3 of 19
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`groups, and web-based surveys), and a broad range of populations (general population, specific
`groups, youth) not only in the United States and Canada but throughout the world.
`
`I have expertise in statistical methods relevant to survey data. I have taught courses in
`advanced statistical methods and research design (including experimental and survey
`methods,) at the University of Michigan (where l was a faculty member in the world-renowned
`ICPSR Summer Statistics Program for over a decade, beginning when l was still a graduate
`student), Northwestern, Princeton, and Waterloo.
`
`l have expertise in trademark surveys, including those involving issues of likelihood of
`confusion, secondary meaning, and genericness (Appendix A).
`
`B. BACKGROUND AND ASSIGNMENT
`
`JJI International, lnc. (hereafter referred to as "JJl") designs, sources, and manufactures various
`products, including jewelry items that it sells under its registered SPLASHES 8. SPARKLES
`mark. SPARKLE LlFE, LLC (hereafter referred to as "SPARKLE LlFE"), another jewelry
`company, uses the SPARKLE LlFE mark for its products. I have been asked by counsel for JJl
`to develop, field, and analyze a survey to determine whether or not individuals comprising the
`relevant universe are confused about the source of the products because of the similarity of the
`product names.
`
`Under my direction, part of the work was conducted by personnel at Applied Marketing Science,
`inc. (hereafter referred to as "All/ls"). i am being compensated for my work on this matter at
`$550 per hour. My compensation is not contingent upon the conclusions I reach or on the
`outcome of this matter.
`
`A list of the documents l reviewed in connection with this assignment is included in Appendix B.
`My work is ongoing, and I may supplement this report should additional relevant data become
`available.
`
`C. SUMMARY OF OPINIONS
`
`Based on the results of the survey, which was conducted among members of the relevant
`universe, that is, purchasers of jewelry at the appropriate price points in the appropriate
`channels, it is my opinion to a reasonable degree of professional certainty that a likelihood of
`confusion exists between the origins of the two jewelry brands, marketed under the names
`SPLASHES & SPARKLES (JJl) and SPARKLE LIFE (SPARKLE LlFE, LLC).
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`JJI v Sparkle Life Survey—Final Report—danuary 3, 2013
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`Page 4 of 19
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`The survey was designed in accordance with the relevant factors outlined in the Manual for
`Complex Litigation (4th edition) published in 2004 by the Federal Judicial Center. These include:
`0 whether the population was properly chosen and defined;
`o whether the sample chosen was representative of that population;
`a whether the data gathered were accurately reported;
`- whether the data were analyzed in accordance with accepted statistical principles;
`0 whether the questions asked were clear and not leading;
`- whether the survey was conducted by qualified persons following proper interview
`procedures; and
`
`0 whether the process was conducted so as to ensure objectivity (e.g., that respondents
`were unaware of the sponsor of the survey and how the results would be used, and
`that response options were randomized to eliminate order effects).
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`D.2. Data Coilection Methods—|nternet Survey
`
`lnternet surveys are an increasingly common form of market research. Over 78% of the U.S.
`population has access to the Internet.‘ Many major corporations use Internet surveys to support
`multi—mi|lion doliar marketing decisions? Courts accept the results of Internet surveys in a wide
`range of cases.“
`
`An Internet survey is conducted by contracting with one of the numerous companies that have
`pre-recruited potential respondents who have indicated their witlingness to participate in market
`research surveys. For this case, I selected ResearchNow (formerly eRewards), a well-
`established international market research service firm that maintains a panel of nearly 3 million
`active members in the United States.5 AMS has worked with ResearchNow on a number of
`other projects and has found them to be a consistently reliable and high quality supplier of
`qualified survey respondents. As part of the ResearchNow panel recruitment process, each
`potential panel member completes a demographic questionnaire.
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`For the present survey, ResearchNow created a random sample of its national panel. All
`respondents were verified at the onset of the survey by matching the self-reported data for age
`
`1 http:/lwww.internetworldstatscomlstatst4.htm as of December 31, 2011 (viewed 12/29/2012).
`2 According to an annual study conducted by inside Research®, 43% of survey research in the U.S. was conducted
`oniine in 2008.
`3 Robert H. Thornburg, Trademark Surveys: Development of Computer-Based Survey Methods, 4 J. Marshail Rev.
`lntei. Prop. L. 91 (2005).
`‘Gabriel M. Gelb and Betsy D. Gelb, “tnternet Surveys for Trademark Litigation: Ready or Not, Here They Come,"
`The Trademark Reporter. Voi. 97, No. 5. Sept-Oct, 2007, p. 1073.
`5 Active members are defined as having responded to a survey invitation in the past 12 months.
`
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`JJl v Sparkle Life Survey——Final Reportwdanuary 3. 2013
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`survey, which was hosted on a website maintained by AMS. This iink contained an embedded
`identification number that ensured that each respondent could only complete the survey once.
`Respondents who qualified and completed the survey were given reward points that could be
`used toward the redemption of items such as gift cards. This is a standard procedure for
`compensating respondents for participating in surveys.
`
`Data collection on the survey began on Thursday, December 27, 2012 and ended on Friday,
`December 28, 2012. A total of 1,100 respondents entered the survey, of which 412 (37%) were
`ultimately qualified for inclusion because they met all the screening criteria described below.
`
`AMS coordinated all data collection and oversaw the data collection process. Of the 15,500 e~
`mail invitations that were sent, 1,100 individuals entered the survey. Of these individuals, 688
`failed to qualify because they were under the age of 18 or faiied to specify their age (8), they
`self terminated (10), they were not completing the survey on either a desktop, a laptop, or tablet
`computer (55), they failed to pass the ageigender validation (i.e., their age andlor gender
`responses did not match their panel profile information) (54), they have family members who
`work for a company that makes or sells jewelry (24), or they have not purchased/would not
`consider purchasing a piece of women's jewetry in the qualifying price ranges at the qualifying
`stores in the last/next twelve months (537). The remaining 412 respondents qualified as
`members of the relevant population. (See Appendix C for a complete list of response statistics).
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`E. SURVEY INSTRUMENT
`
`it is important to note that this study followed a strict experimental design in which qualified
`respondents were randomly assigned to a Test or Control Condition group. The only difference
`between the two conditions of the survey was the iewelry brand name (SPARKLE vs.
`SHIMMER LIFE) compared with SPLASHES & SPARKLES. Any differences in response on
`the criticai question, regarding the likeiihood of confusion between the marks SPLASHES &
`SPARKLES and SPARKLE LIFE, can only be due to this difference in the jewelry brand name.
`Nothing else differed between the two conditions. Experimental methods have been effectively
`used and are specifically noted as an indication of strong design in many trademark surveys,
`stemming from their high regard in scientific research more generally."”Screenshot images of
`the survey may be found in Appendix D.
`
`5 Diamond, 8.8. (2011) Reference Guide on Survey Research. (3"‘ edition) In Reference Manual on Scientific
`Evidence. Washington, D.C.: Federal Judicial Center, 398.
`7 McCarthy, McCarthy on Trademarks and Unfair Competition §32:173.50 and 32:17? (-4"‘ ed. 2011).
`
`
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`person as opposed to a computer programs Next, respondents indicated the type of electronic
`device they were using to complete the survey (81). To ensure that all respondents could
`properly view the survey images and questions, the survey instructed respondents who
`indicated that they were taking the survey on a device with a small screen (e.g., a smart phone
`or other mobile or electronic device) to log back into the survey using a laptop, desktop, or tablet
`computer. Next, respondents provided their age and gender (82 and 83, respectively).
`Respondents younger than 18 were not permitted to continue. Age and gender information aiso
`validated that the person taking the survey is the same person who registered with the panel
`provider; respondents who entered age or gender information that did not match the age and
`gender information on file with the panel provider were terminated for a failure to vaiidate. The
`next screening question asked whether the respondent or anyone in hislher household was
`employed at a company that makes or seils jeweiry, computers, kitchen appliances, or home
`furnishings (84). Anyone who indicated an employment affiliation in the jewelry category was
`not permitted to continue.
`
`Next, a purchase qualification question was asked about women's jewelry (85). I sought to
`evaluate a range of price points across the junior user's (SPARKLE LiFE's) products from $25
`to over $250, with the majority of SPARKLE i.lFE’s products priced as components bought in
`combinations (i.e., earrings, bracelets, necklace chains, and one or more beads). Respondents
`were asked to consider a range of store types. All respondents were asked to specify in which
`stores type(s) and in which price range(s) they had purchased a piece of wornen'sjeweiry in the
`past tweive months. Past purchase can be a good indicator of future jewelry purchases for two
`reasons: at the high end, a recent purchase may not be repeated for a while, and at the low
`end, there are more impulse purchases, which may be hard for respondents to acknowledge in
`a question about future behavior. Those who indicated they had purchased a piece of women's
`jewelry in a local jewelry store or boutique, a local or chain gift store, or a campus bookstore
`(included because these are major retaii outlets for SPARKLE LIFE, LLC) in either the $25-99 or
`$100-249 price range were qualified for the survey and were skipped to the main part of the
`survey. The order of presentation for the store types was ranciomiy rotated.
`
`8 A CAPTCHA challenge refers to a program that protects websites against bots (i.e., computer-generated
`rcsp onses) by generating and grading tests that humans can pass, but current computer programs cannot.
`The acronym CAPTCHA stands for Completely Automated Public Turing Test To Tell Computers and
`Humans Apart. See, e.g., “CAPTCHA: Telling Humans and Computers Apart Automatically,”
`CAPTCHA, http://www.captcha.net/, visited on December 31, 2012.
`
`
`
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`JJF v Sparkle Life Survey—Final Report—January 3, 2013
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`Page 7 of 19
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`
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`You may select as many price ranges and as many store types as necessary to indicate
`where you have purchased a piece of women's jewelry and what you paid for a piece in the
`
`
`
`last 12 months.
`
`
`i have not
`.5h°p”ed f°f
`
`
` [RANDDMIZE STORE TYPES]
`jewelry at this
`type of store
`[EXCLUSIVE]
`
`Less
`than
`$25
`
`525-
`99
`
`$1oo-
`249
`
`$250 or
`more
`
` Local jewelry store or boutique
`or its website
`
`
`
`
`
`
`
`Regional or national jewelry store chain
`
`(e.g., Claire's, Forever 21) or its website
`Discount retailer
`
`
`(e.g., Walmart, Target) or its website
`Oniine from the manufacturer
`
`
`
`
`Local or chain gift store
`or its website
`
`
`
`Campus bookstore
`or its website
`
`
`
`The shaded areas in the matrix of store types by price of jewelry purchased indicates those
`store type x price combinations that qualified the respondent as being a member of the relevant
`universe. The shading is provided here for iilustration; the actual matrix presented to each
`potential respondent had no shading.
`
`For those who did not qualify in 85 on past purchase behavior in the ranges where the majority
`of SPARKLE LiFE's products are priced, a similar question (86) was asked to evaluate
`consideration of future purchase. in 86, respondents were asked to specify in which store
`type(s) and in which price range(s) they would consider purchasing a piece of women's jewelry
`in the next tweive months. Those who indicated they would consider purchasing a piece of
`women's jewelry in a local jewelry store or boutique, a local or chain gift store, or a campus
`bookstore in either the $25-99 or $100-249 price range were qualified as considerers and
`members of the relevant universe, and were allowed to continue in the survey. The order of
`presentation for the store types was shown in the same random order as in S5.
`
`
`
`JJI v Sparkle Life Survey—Final Report—January 3, 2013
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`Page 8 of 19
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`

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`where you would consider purchasing a piece of women's jewelry and what you would
`consider paying for a piece in the next 12 months.
`
`IRANDOMIZE STORE Types In SAME
`
`ORDER A5 S5]
`
`or its website
`
`Local jewelry store or boutique
`or its website
`Local or chain gift store
`Campus bookstore
`or its website
`Regional or national jewelry store chain
`(e.g., Claire's, Forever 21} or its website
`Discount retailer
`(e.g., Walmart, Target} or its website
`Online from the manufacturer
`
`525
`
`D
`
`D
`U
`
`D
`[3
`El
`
`3325-
`
`99
`
`5100-
`
`249
`
`$250 or
`
`more
`
`
`
`D
`D
`El
`
`D
`D
`El
`
`D
`
`U
`D
`
`D
`D
`E]
`
`lwouid not
`
`
`jevjglfgigihis
`
`
`type of store
`
`
`EXCLUSIVE]
`Cl
`
`U
`[3
`
`B
`D
`El
`
`Similar to 85, the shaded areas in the matrix of store types by price ofjeweiry that wouid be
`considered for purchase in 36 indicates those store type x price combinations that qualified the
`respondent as being a member of the relevant universe. As in 85, the shading in the depiction
`of 86 above is provided for illustration; the actual matrix presented to each potentiai respondent
`
`had no shading.
`
`E.2. Main Questionnaire
`
`Once they had qualified for the survey by fulfiiling the screening criteria, respondents were
`instructed to look at an image of SPLASHES & SPARKLES jewelry. Images used in the survey
`may be found in Appendix E.
`
`The image below shows a piece of jewelry that you might see in a store or online. Please look at
`the image as if you were considering shopping for this type of jeweiry. (Please scroll to see the
`whole image, if necessary.)
`
`
`JJI v Sparkle Life Survey—FlnaI Report—January 3, 2013
`Page 9 of 19
`
`a
`
`J
`i
`'
`
`i
`
`3
`
`I
`
`J
`
`
`
`

`
`(Select one only)
`
`0 Yes
`
`(9 No
`
`6) Unsure
`
`Next, respondents were instructed to look at a different piece of jewelry.
`
`
`
`The image below shows a different piece of jewelry. Please look at the image as if you
`were considering shopping for this type of jewelry. (Please scroll to see the whole image,
`if necessary.)
`
`Below this instruction, respondents were shown the SPARKLE LlFE image or the SHlMlViER
`LIFE image, depending on whether they were randomly placed in the Test (SPARKLE LIFE) or
`Control (SHiMMER LIFE) Condition group. The Test and Control images are shown in Appendix
`D. At the bottom of this page, respondents were asked about the source of the jewelry (Q2).
`
`Q2. Do you think that the jewelry in the image above is put out by the same company or
`by a different company that puts out the jewelry in the image you saw before, or are
`you unsure? (Select one onlj/)9
`
`O Thejewelry in each image is put out by the same company
`6) The jewelry in each image is put out by a different company
`O Unsure
`
`Those respondents who indicated that the jewelry in both images was put out by the same
`company were prompted to explain their rationaie (Q3).
`
`9 The order of “same” and "different" in the question text, along with their corresponding response options were
`randomized across respondents to eliminate any potential order effects.
`
`JJI v Sparkle Life Survey—Fina| Report—January 3, 2013
`
`Page 10 of 19
`
`

`
`Those respondents who perceived that the jewelry shown in both images was produced by
`different companies, or were unsure, were asked if they thought that there existed an affiliation
`or a connection between the two companies (Q4). The same Test or Control image was once
`again shown to respondents.
`
`Q4. Do you think that the company that puts out the jewelry in the image above is affiliated or
`connected with the company that puts out the jewelry in the image you saw before, it i_s
`NOT affiliated or connected , or are you unsure? (Select one only)”
`
`(9 Unsure
`
`l believe that the two companies E affiliated or connected
`(9
`O I believe that the two companies are NOT affiliated or connected
`
`Those respondents who indicated that the company that put out the jewelry in the second image
`was affiliated or connected with the company that put out the jewelry in the first image were then
`prompted to explain their rationale (Q5).
`
`Q5. As fully as possible, please explain why you say that the two companies E affiliated or
`connected. (Please answer as completely as possible. You are not limited by the size of the
`
`answer box)
`
`1° Once again, the response options (“are atfiliated or connected" and "are NOT affiliated or connected”) were
`randomized across respondents to eliminate any potential order effects, and shown in the same logical order as in Q2
`to avoid confusion across questions.
`
`JJI v Sparkle Life Survey-~Final Report~—January 3, 2013
`
`Page 11 of 19
`
`
`
`

`
`name of the jewelry brands compared with SPLASHES & SPARKLES, presented as SPARKLE
`LIFE (Test Condition) or SHIMMER LIFE (Control Condition)
`
`Table 1. Frequencies (N) and Percentages {%) ofthe Perception That the Jeweiry ls Put
`
`Out by the Same or Different Company
`
`
`
`
`
`Do you think that the jewelry in
`the image above is put out by
`the E company or by a
`different company that puts out
`the jewelry in the image you saw
`before, or are you unsure?
`
`SPLAS!-IES & SPARKLES
`and SPARKLE LIFE
`
`SPLASHES 8: SPARKLES
`and SHJMMER LtFE
`
`(Test Condition)
`
`(Controi Condition)
`
`%
`
`%
`
`Difference
`
`
`
`
`
`
`
`E_
`
`
`
`
`
`
`
`
`
`
`
`The results show the net confusion (meaning those who thought SPLASH ES & SPARKLES and
`SPARKLE LlFE were put out by the same company compared with those who thought
`SPLASHES & SPARKLES and SHIMMER LlFE were put out by the same company) to be
`17.5%. A statistical test showed that there was a difference between the two conditions in the
`
`responses, 752 (df =2) = 17.029, p = .0002. This probability is very low (far lower than the
`standard threshold for "statistical significance” of p = .05). This means that the two conditions do
`
`differ in the pattern of responding to the “same company” vs. "different company" question.
`
`Table 2 presents the data in Table 1 that focuses specifically on the percentage of respondents
`in each of the two conditions that believed that the two jewelry brand names came from the
`
`same company vs. either those who beiieved the jewetry to be from different companies or
`those who were unsure. in other words, Table 2 is the same as Table 1 except "Different
`
`Company" is combined with "Unsure."
`
`JJJ v Sparkie Life Survey—-Final Report——January 3. 2013
`
`Page 12 of 19
`
`

`
`(Test Condition)
`
`(Control Condition)
`
`
`
`
`
`Do you think that the jewelry in
`
`the image above is put out by
`
`
`the E company or by a
`
`different company that puts out
`the jewelry in the image you saw
`before, or are you unsure?
`
`Same Company
`
`
`
`
`
`A chi—square test was conducted that examines specifically whether those respondents
`providing their perceptions about SPLASHES & SPARKLES and SPARKLE LIFE (Defendant's
`mark) were more likely to believe them to come from the same company (34.0%) than were
`those respondents who provided their perceptions about SPLASHES & SPARKLES and
`SHlMiVlER LIFE (a control mark) (16.5%). This difference was 17.5%, and the chi~square test is
`the appropriate statistical procedure for testing whether this difference is statistically significant
`from a difference of zero. This chi-square test was highly statistically significant, X2 (df = 1) =
`16.669, p = .0O004449.
`
`Following from standard statistical theory, there was only one chance in about 22,477 (that is,
`the reciprocal of