throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA599937
`ESTTA Tracking number:
`04/22/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91212477
`Defendant
`GFA Brands, Inc.
`MARTA S LEVINE
`QUARLES & BRADY LLP
`411 E WISCONSIN AVE, SUITE 2350
`MILWAUKEE, WI 53202-4461
`UNITED STATES
`tm-dept@quarles.com, johanna.wilbert@quarles.com, dav-
`id.cross@quarles.com, DRC@quarles.com, marta.levine@quarles.com, jwil-
`bert@quarles.com
`Other Motions/Papers
`Johanna M. Wilbert
`johanna.wilbert@quarles.com, deena.rafinski@quarles.com
`/Johanna M. Wilbert/
`04/22/2014
`2014-4-22 GFA Brands Inc _s Disclosure of Expert Philip Johnson.pdf(396658
`bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`
`
`
`In the Matter of Application Serial No. 85/751,520: EARTH BALANCE
`Published for Opposition March 19, 2013
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Opposition Nos. 91212477
`
`
`
`
`
`
`
`
`BALANCE BAR COMPANY
`
`
`
`
`
`GFA BRANDS, INC.
`
`
`Opposer,
`
`v.
`
`Applicant.
`
`GFA BRANDS, INC.’S DISCLOSURE OF EXPERT PHILIP JOHNSON
`
`Pursuant to Fed. R. Civ. P. 26(a)(2) and 37 C.F.R. §2.120, GFA Brands, Inc. hereby gives
`
`
`
`
`
`notice that it discloses Philip Johnson as a witness who may be used to present expert testimony
`
`in the above-captioned matter. An expert report and the other required disclosures by
`
`Mr. Johnson are set forth in the attachment, and were provided to counsel for Opposer via e-mail
`
`and first class mail on Tuesday, April 22, 2014, as required by the schedule previously set in this
`
`proceeding.
`
`QB\26411446.1
`
`1
`
`

`
`Dated this 22nd day of April, 2014.
`
`ｾｩ､ｒｃｦｏｓｳﾭ
`Marta S. Levine
`Johanna M. Wilbert
`Quarles & Brady LLP
`411 East Wisconsin A venue
`Milwaukee, Wisconsin 53202-4497
`Telephone: (414) 277-5495
`Facsimile: (414) 978-8942
`Email: DRC@quarles.com
`Email: marta.levine@quarles.com
`Email: jwilbert@quarles.com
`
`Attorneys for Applicant GF A Brands, Inc.
`
`QB\26411446.1
`
`2
`
`

`
`CERTIFICATE OF SERVICE
`
`A copy ofthe foregoing GFA Brands, Inc. Disclosure of Expert Philip Johnson along
`
`with a copy of Mr. Johnson's report and required disclosures were served on this 22nd day of
`
`April2014, via regular U.S. Mail, with e-mail courtesy copies upon:
`
`Dated: April 22, 2014
`
`Attorney for Applicant
`
`QB\26411446.1
`
`3
`
`

`
`
`
`
`
`BALANCE BAR COMPANY
`
`(OPPOSER)
`
`
`
`V.
`
`
`
`GFA BRANDS, INC.
`
`(APPLICANT)
`
`
`
`A STUDY OF LIKELIHOOD OF CONFUSION
`
`
`
`
`
`
`
`
`
`April 2014
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`HIGHLY CONFIDENTIAL
`
`
`
`
`
`
`
`

`
`TABLE OF CONTENTS
`
`
`
`
`
`Page
`
`INTRODUCTION ................................................................................................... 2
`
`
`I. BACKGROUND ..................................................................................................... 1
`
`II.
`
`III. METHODOLOGY .................................................................................................. 4
`
`IV. RESULTS ................................................................................................................ 14
`
`V. CONCLUSIONS AND OPINIONS ........................................................................ 18
`
`
`
`APPENDIX A
`
`
`• Philip Johnson Curriculum Vitae
`• Recent Cases In Which Philip Johnson Has Testified
`
`
`
`
`
`APPENDIX B
`
`
`• Questionnaire
` •
` • Exhibits
`
`Interviewing Instructions
`
`
`
`APPENDIX C
`
`
`• Validation Summary
`
`
`
`APPENDIX D
`
`
`• Verbatim from Respondents Who Name “Balance Bar”
`
`
`
`HIGHLY CONFIDENTIAL
`
`

`
`
`
`
`
`REPORT OF PHILIP JOHNSON
`
`
`
`
`
`I, Philip Johnson, state as follows:
`
`
`
`
`1.
`
`
`
`2.
`
`I. BACKGROUND
`
`Until January 2014, I was the Chief Executive Officer of Leo J. Shapiro and Associates,
`
`Inc., a market research and consulting firm that conducts surveys. Currently, I am the
`
`President of JJG Group, LLC, a market research company specializing in litigation
`
`related market research.
`
`I have designed and supervised hundreds of surveys measuring consumer behavior,
`
`opinion, and beliefs concerning brands and products, employing a wide range of research
`
`techniques. I have given lectures before the American Bar Association (ABA), the
`
`Practising Law Institute (PLI), the American Intellectual Property Law Association
`
`(AIPLA), and the International Trademark Association (INTA) on the use of survey
`
`research in litigation. I am a member of the American Marketing Association (AMA),
`
`the American Association for Public Opinion Research (AAPOR), and the International
`
`Trademark Association (INTA). I have a B.S. degree in Psychology from Loyola
`
`University and an M.B.A. degree from the University of Chicago. A description of my
`
`background and a list of cases in which I have offered survey evidence during the past
`
`four years are attached to Appendix A of this Report.
`
`HIGHLY CONFIDENTIAL
`
`

`
`2
`
`II. INTRODUCTION
`
`3.
`
`4.
`
`
`
`5.
`
`During February 2014, I was contacted by counsel from the law firm, Quarles & Brady
`
`LLP, on behalf of its client, GFA Brands, Inc. (“GFA”). Counsel informed me of a
`
`dispute that has arisen between GFA and Balance Bar Company (“Balance Bar”).
`
`
`
`This dispute concerns GFA’s intent-to-use application (Serial Number: 85/751,520) in
`
`the U.S. Patent and Trademark Office, which seeks to register the term EARTH
`
`BALANCE in connection with “nut and seed-based snack bars” (e.g., all natural snack
`
`bars) in International Class 29. It is my understanding that Balance Bar has filed an
`
`opposition (Opposition Number: 91212477) to GFA’s application alleging that
`
`consumers who encounter Earth Balance “nut and seed-based snack bars” may falsely
`
`believe that they come from or are related to Balance Bar. In its opposition, Balance Bar
`
`claims it has developed a family of BALANCE marks that has substantial goodwill and
`
`recognition in the marketplace.1
`
`
`
`Counsel asked whether I could design and conduct a study that would measure the extent
`
`to which, if at all, the Earth Balance name is or is not likely to cause confusion with
`
`Balance Bar when relevant consumers are exposed to it in connection with all natural
`
`snack bars. I agreed and proceeded to design and conduct such a study. What follows is
`
`a report on the design, execution, results, and conclusions that one can draw from this
`
`research.
`
`
`
`
`
`
`
`
`1 Notice of Opposition; Dated: September 14, 2013.
`
`HIGHLY CONFIDENTIAL
`
`

`
`3
`
`6.
`
`
`Materials that I have reviewed and relied upon in formulating my survey and stated
`
`opinions include the following:
`
`
`
`
`
`
`
`
`
`• Case Pleadings:
`
`
`
`- Balance Bar Company (Opposer) v. GFA Brands, Inc. (Applicant); Notice
`of Opposition (dated: 9/14/13)
`
`- Balance Bar Company (Opposer) v. GFA Brands, Inc. (Applicant);
`Answer of GFA Brands, Inc. (dated: 10/10/13)
`
`• Demographics:
`
`- Earth Balance: Simmons Analysis (dated: February 13, 2014);
`GFA_EB000236 – GFA_EB000273
`
`
`
`HIGHLY CONFIDENTIAL
`
`

`
`4
`
`III. METHODOLOGY
`
`7.
`
`Personal interviews were conducted between March 15 and 24, 2014 with 4172 adults
`
`who are current or prospective purchasers of all natural snack bars. These personal
`
`interviews were conducted in shopping mall-based research facilities located in 8 markets
`
`geographically distributed throughout the United States.
`
`Specifically, interviewing was conducted in each of the four major U.S. Census Regions,
`
`as follows:
`
`NORTHEAST
`
`SOUTH
`
`MIDWEST
`
`WEST
`
`New York, NY
`
`Raleigh-Durham, NC
`
`Milwaukee, WI
`
`Seattle, WA
`
`Philadelphia, PA
`
`Dallas, TX
`
`Chicago, IL
`
`Los Angeles, CA
`
`
`
`Gender and age quotas were established to reflect the distribution of natural or organic
`
`food purchasers.3 The gender and age distributions of survey respondents are as follows:
`
`
`
`8.
`
`9.
`
`Total
`(417)
`100%
`
`62%
`38
`
`31%
`39
`30
`42 years
`
`
`
`ALL RESPONDENTS
`Gender
`Female
`Male
`Age Group
`Between 18 and 34 Years
`Between 35 and 54 Years
`55 Years and Older
`Mean Age
`
` 2
`
`
` A total of 425 interviews were conducted. However, eight of these interviews have been excluded from the
`database due to failure in the validation process, leaving a total of 417 qualifying interviews. ID numbers for these 8
`invalid interviews are: 28, 29, 127, 256, 293, 296, 384, and 410.
`3 Earth Balance: Simmons Analysis; Dated: February 13, 2014. (GFA_EB000236 – GFA_EB000273).
`
`
`HIGHLY CONFIDENTIAL
`
`

`
`5
`
`10.
`
`The survey employed a “test” cell and a “control” cell. Each respondent was randomly
`
`assigned to either the test cell (i.e., viewed only the test cell exhibit) or the control cell
`
`(i.e., viewed only the control cell exhibit). One-half of the interviews were conducted in
`
`the test cell (210 cases), while the other half of the interviews were conducted in the
`
`control cell (207 cases).
`
`
`
`11.
`
`12.
`
`
`
`Test cell respondents were exposed to an exhibit card bearing the name “EARTH
`
`BALANCE,” while control cell respondents were exposed to an exhibit card bearing the
`
`name “EARTH BAR” in all capital letters. I selected “EARTH BAR” as the control cell
`
`name because it retains the “EARTH” portion of the mark while substituting
`
`“BALANCE” with a neutral generic term, “BAR.”
`
`
`
`Reduced size images of the exhibit cards are shown below:
`
`Test Cell Exhibit
`
`
`
`HIGHLY CONFIDENTIAL
`
`
`
`

`
`6
`
`Control Cell Exhibit
`
`
`
`
`
`This approach of using both a test cell and control cell is the preferred survey
`
`methodology because there is a certain amount of error in any survey measurement that
`
`can be caused by sample error, guessing, the design of the study, or the construction of
`
`the questions asked. It is important to exclude these forms of error from the study results
`
`when assessing the degree of confusion that may be present. Specifically, the
`
`methodology used in this study allows one to accurately isolate and assess the effects of
`
`the alleged infringing word mark at issue when measuring any possible likelihood of
`
`confusion. Operationally, this is accomplished by taking the proportion of test cell
`
`respondents who falsely identify Balance Bar as the source or related source when shown
`
`the Earth Balance name in connection with all natural snack bars and then subtracting the
`
`corresponding proportion of control cell respondents who similarly falsely identify
`
`Balance Bar as the source or related source when shown the Earth Bar name in
`
`13.
`
`connection with all natural snack bars.
`
`HIGHLY CONFIDENTIAL
`
`

`
`7
`
`14.
`
`During the course of the interview, each respondent was asked who they believe is the
`
`source and whether they believe the source is related to, associated with, or has a
`
`licensing agreement with any other brands, products, or companies. In order to
`
`understand the basis for their beliefs as well as exactly what company they are referring
`
`to, respondents were then asked open-ended questions that allowed them to explain their
`
`answers in their own words and clarify each survey response.
`
`
`
`15.
`
`
`
`16.
`
`
`
`17.
`
`This methodology follows the general pattern of the “Eveready” test, which is frequently
`
`used to measure likelihood of confusion. This design produces a very direct measure of
`
`confusion as to source or relationship.
`
`In disputes about likelihood of confusion, the appropriate universe for the survey is the
`
`junior user’s market. In his treatise, Dr. Thomas McCarthy states that when designing a
`
`study to measure likelihood of confusion, the proper universe is potential consumers of
`
`the junior user’s goods or services:4
`
`In a traditional case claiming “forward” confusion, not “reverse”
`confusion, the proper universe to survey is the potential buyers of
`the junior user’s goods or services.
`
`
`In order to reach the relevant universe, interviews were conducted with adults 18 years of
`
`age and older who have either personally purchased all natural snack bars in the past four
`
`weeks or plan to personally purchase all natural snack bars in the next four weeks.
`
`
`
`
`
`4 McCarthy, J. Thomas. McCarthy on Trademarks and Unfair Competition, Volume 5, 32:159, pg. 32-249. 2001.
`
`HIGHLY CONFIDENTIAL
`
`

`
`8
`
`18.
`
`In order to qualify, respondents must have also met all of the following criteria:
`
`• Must not have participated in any market research survey in the past three
`
`months.
`
`
`• The respondent, or any member of his/her household, must not work for a
`
`market research or advertising firm; a manufacturer, distributor, or retailer of
`natural or nutritional food products; or a store in the mall where the
`interviewing took place.
`
`
`• Must be wearing his/her eyeglasses or contact lenses at the time of the
`
`interview if he/she usually wears them when shopping or reading.
`
`The screening interview proceeded as follows:
`
`
`
`19.
`
`Question I:
`
`“Before we begin, what is your age?”
`
`
`Question II:
`
`“RECORD GENDER FROM OBSERVATION:”
`
`
`
`Question IIIa:
`
`“Thinking about the past four weeks, have you personally
`purchased…(ASK FOR EACH BELOW)?
`…soy or veggie chips?
`…all natural snack bars?
`…enhanced or flavored waters?”
`
`
`Question IIIb:
`
`“Thinking about the next four weeks, do you personally plan to
`purchase…(ASK FOR EACH BELOW)?
`…soy or veggie chips?
`…all natural snack bars?
`…enhanced or flavored waters?”
`
`
`
`
`
`
`
`
`
`
`
`
`HIGHLY CONFIDENTIAL
`
`

`
`9
`
`Question IV:
`
`“Have you participated in any market research survey in the past three
`months?”
`
`
`
`
`
`
`Question V:
`
`“Do you, or does any member of your household, work for…(ASK FOR
`EACH)?
`…a market research or advertising firm?
`…a manufacturer, distributor, or retailer of natural or nutritional
`food products?
`…a store in this mall?”
`
`
`
`Question VIa:
`
`“Before we continue, do you usually wear eyeglasses or contact lenses
`when you shop or read?”
`
`
`
`Question VIb:
`
`“IF ‘YES’ IN Q.VIa, ASK: Before continuing, would you please put
`them on?”
`
`
`
`Question VII:
`
`“I would like to ask you a few questions in our interviewing facility. The
`whole process will take about five minutes of your time. Would you be
`willing to help us out?”
`
`Each screened and qualified respondent was escorted to a private room in the
`
`interviewing facility to conduct this interview.
`
`
`
`HIGHLY CONFIDENTIAL
`
`
`
`20.
`
`
`
`

`
`21.
`
`Respondents were told:
`
`10
`
`“Before we begin, I would like you to know that your answers and identity will be
`kept strictly confidential. If you don’t know the answer to any of the questions, it
`is okay to say so. Please do not guess. If you normally wear eyeglasses or
`contact lenses when you shop or read, please take them out and put them on.”
`
`
`
`Qualified respondents were then handed either the test cell exhibit or the control cell
`
`exhibit and told:
`
`Question 1:
`
`“HAND RESPONDENT EXHIBIT CARD. SAY: This is the name of an all
`natural snack bar that you might see if you were shopping for such products at a
`store. Feel free to comment, if you wish, on anything about this. RECORD ANY
`SPONTANEOUS COMMENTS MADE.”
`
`Once the respondent was done looking at the exhibit, the interviewer was instructed to
`
`take it away and put it out of sight for the remainder of the interview.
`
`
`
`The exact questions used in the interview, and the sequence in which they occurred are as
`
`follows:
`
`Question 2a:
`
`
`
`
`
`
`
`
`“Based on what you just saw, who or what company do you believe makes
`the snack bar with the name that I showed you OR do you not have a
`belief?”
`
`
`Question 2b:
`
`“What makes you say that <INSERT RESPONSE GIVEN IN Q.2a> makes
`the snack bar with the name that I showed you? PROBE: Anything
`else?”
`
`22.
`
`
`
`23.
`
`24.
`
`
`
`
`
`
`
`
`
`
`
`HIGHLY CONFIDENTIAL
`
`

`
`11
`
`Question 3a:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`“What other products or brands, if any, do you believe come from the
`same company who makes the snack bar with the name that I showed you
`OR do you not have a belief? PROBE: Any others?”
`
`
`Question 3b:
`
`“ASK FOR EACH PRODUCT OR BRAND GIVEN IN Q.3a: What
`makes you say that <INSERT RESPONSE GIVEN IN Q.3a> comes from
`whoever makes the snack bar with the name that I showed you? PROBE:
`Anything else?”
`
`Question 4a:
`
`“What other brand or company, if any, do you believe is related to,
`associated with, or has a licensing agreement with whoever makes the
`snack bar with the name that I showed you OR do you not have a belief?
`PROBE: Any others?”
`
`
`Question 4b:
`
`“ASK FOR EACH BRAND OR COMPANY GIVEN IN Q.4a: What
`makes you say that <INSERT RESPONSE GIVEN IN Q.4a> is related to,
`associated with, or has a licensing agreement with whoever makes the
`snack bar with the name that I showed you? PROBE: Anything else?”
`
`Finally, classification information was secured and the interview completed. Copies of
`
`the questionnaire, interviewing instructions, and exhibits used are attached to Appendix B
`
`of this Report.
`
`Based on the sample size of roughly 200 cases per cell, the statistical error rate for the
`
`key measures in this study falls into the range of ±4.2% for a statistic such as 10% at the
`
`95% confidence level. In other words, one would expect that 95 times out of 100, a
`
`HIGHLY CONFIDENTIAL
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`25.
`
`
`
`26.
`
`

`
`
`
`27.
`
`
`
`28.
`
`
`
`29.
`
`12
`
`measurement that was actually 10%, would accurately be represented in the data by a
`
`statistic as high as 14.2%, or as low as 5.8%.
`
`Interviewing was administered and supervised, under my direction, by Survey Center,
`
`L.L.C., a company that specializes in the administration of market research surveys.
`
`Survey Center is the data collection division of Leo J. Shapiro and Associates and is a
`
`member of the Market Research Association. Interviewing in each market was
`
`conducted by independent research firms who specialize in personal interviewing in
`
`shopping malls. Interviewers in each market were trained in proper interviewing
`
`techniques and were briefed specifically on this project.
`
`The survey used a “double-blind” approach, where neither the respondent nor the
`
`interviewers conducting the study were aware of the purpose of the research or the
`
`identity of the party who commissioned it. The methodology, survey design, execution,
`
`and reporting were all conducted in accordance with generally accepted standards of
`
`objective procedure and survey technique.
`
`Independent validation was conducted by telephone, which involved re-establishing
`
`contact with the persons who were interviewed in the study. Based on this re-contact,
`
`overall, eight of the 425 interviews failed during the validation procedure, leaving a total
`
`of 417 qualifying interviews. These eight interviews have been excluded from the study
`
`sample, and there is no significant change in any of the study results based on this
`
`HIGHLY CONFIDENTIAL
`
`

`
`13
`
`exclusion. A detailed summary of the survey validation is attached to Appendix C of
`
`this Report.
`
`
`
`30.
`
`The work performed to design, carry out, and report this study is covered by a billing of
`
`$90,000. Additional time required for trial testimony or deposition, will be billed at a
`
`rate of $7,000 per day, plus expenses.
`
`HIGHLY CONFIDENTIAL
`
`

`
`14
`
`IV. RESULTS
`
`Source Question
`
`31.
`
`Nature Valley (10%) is named most frequently by test cell respondents as the source of
`
`the snack bar with the name they were shown, followed by Kellogg’s (4%), Kashi (4%),
`
`and Earth Balance (3%). Control cell respondents most frequently name Nature Valley
`
`(14%), Kellogg’s (3%), and Kashi (2%) as the source. Only 3% of test cell respondents
`
`report the false belief that Balance Bar is the source of an all natural snack bar called
`
`Earth Balance. None of the control cell respondents name Balance Bar in response to this
`
`question.
`
`Q. 2a: “Based on what you just saw, who or what company do you believe makes
`the snack bar with the name that I showed you OR do you not have a
`belief?”
`
`
`
`
`
`
`ALL RESPONDENTS
`All Who Have A Belief About Source:
`Nature Valley
`Kellogg’s
`Kashi
`Earth Balance
`Balance Bar
`Store Brand
`Clif Bar
`Health/Vegan/Organic/Natural
`Quaker Oats
`Nutri-Grain
`Nestle
`Whole Foods
`Other (Net)**
`Don’t Have A Belief About Source:
`
`EXHIBIT SHOWN
`EARTH
`EARTH
`BALANCE
`BAR
`(210)
`(207)
`100%
`100%
`50%
`47%
`10
`14
`4
`3
`4
`2
`3
`*
`3
`--
`2
`2
`2
`2
`2
`1
`1
`2
`1
`2
`1
`2
`*
`2
`15
`12
`50
`53
`
`HIGHLY CONFIDENTIAL
`
`
`
`*0.5% or fewer mentions.
`**Less than 2% mentions each.
`
`
`

`
`15
`
`Related Products or Brands Question
`
`32.
`
`Overall, test cell respondents most frequently identify Nature Valley (6%) and Kellogg’s
`
`(3%) as related products or brands. Only 1% of test cell respondents report Balance Bar
`
`as a related product or brand to a snack bar called Earth Balance. None of the control cell
`
`respondents name Balance Bar as a related product or brand.
`
`Question 3a:
`
`
`
`“What other products or brands, if any, do you believe come from the
`same company who makes the snack bar with the name that I showed you
`OR do you not have a belief? PROBE: Any others?”
`
`
`
`
`
`
`ALL RESPONDENTS
`
`EXHIBIT SHOWN
`EARTH
`EARTH
`BALANCE
`BAR
`(210)
`(207)
`100%
`100%
`
`All Who Have a Belief About Related Products/Brands:
`
`29%
`
`33%
`
`Nature Valley
`
`Kellogg’s
`
`Quaker Oats
`
`Breakfast/Cereal/Granola Bars
`
`Health/Vegan/Organic/Natural
`
`Energy/Coconut/Natural Drinks
`
`Cereal/Granola/Oatmeal
`
`Balance Bar
`
`Snack Foods/Chips/Cookies
`
`Clif Bar
`
`Other (Net)**
`
`Don’t Have A Belief About Related Products/Brands:
`
`6
`
`3
`
`2
`
`2
`
`2
`
`2
`
`1
`
`1
`
`*
`
`*
`
`14
`
`71
`
`4
`
`1
`
`6
`
`4
`
`2
`
`1
`
`2
`
`--
`
`4
`
`2
`
`11
`
`67
`
`
`
`
`
`
`
`*0.5% or fewer mentions.
`**Less than 2% mentions each.
`NOTE: Table may sum to more than total due to multiple mentions by some respondents.
`
`HIGHLY CONFIDENTIAL
`
`

`
`16
`
`Relationship Question
`
`33.
`
`Just 1% of test cell respondents name Balance Bar as a related source to a snack bar
`
`called Earth Balance. None of the control cell respondents name Balance Bar as a related
`
`source.
`
`
`
`Question 4a:
`“What other brand or company, if any, do you believe is related to,
`associated with, or has a licensing agreement with whoever makes the
`snack bar with the name that I showed you OR do you not have a belief?
`PROBE: Any others?”
`
`
`
`
`
`
`ALL RESPONDENTS
`All Who Have a Belief About Related Source:
`Kellogg’s
`Nature Valley
`Quaker Oats
`Whole Foods
`Post
`Trader Joe’s
`Health/Vegan/Organic/Natural
`Nutri-Grain
`Balance Bar
`Kashi
`Nabisco
`Luna Bar
`Cereal/Granola/Oatmeal
`Clif Bar
`GNC
`Nestle
`Fiber One
`Other (Net)**
`Don’t Have A Belief About Related Source:
`
`EXHIBIT SHOWN
`EARTH
`EARTH
`BALANCE
`BAR
`(210)
`(207)
`100%
`100%
`16%
`21%
`3
`3
`2
`4
`2
`2
`1
`1
`1
`1
`1
`1
`1
`1
`1
`*
`1
`--
`*
`1
`*
`1
`*
`1
`*
`1
`--
`1
`--
`1
`--
`1
`--
`1
`4
`5
`84
`79
`
`
`
`*0.5% or fewer mentions.
`**Single mentions each.
`NOTE: Table may sum to more than total due to multiple mentions by some respondents.
`
`
`
`HIGHLY CONFIDENTIAL
`
`

`
`17
`
`Summary Table for “Balance Bar” Mentions
`
`34. When the results to all survey questions relating to source, related products/brands, and
`
`relationship are considered together on an unduplicated basis, overall just 4% of test cell
`
`respondents report the false belief that Balance Bar is the source or a related source when
`
`they are exposed to the Earth Balance name in connection with all natural snack bars.
`
`None of the control cell respondents report the false belief that Balance Bar is the source
`
`or a related source when they are exposed to the Earth Bar name in connection with all
`
`natural snack bars.5
`
`
`
`
`ALL RESPONDENTS
`
`
`
`Net of Q.2a-4a
`
`EXHIBIT SHOWN
`
`
`
`EARTH
`BALANCE
`(210)
`100%
`
`EARTH
`BAR
`(207)
`100%
`
`Adjusted
`Net
`
`
`
`Total “Balance Bar” Identification (Net):
`
`4%
`
`--%
`
`In Source
`
`In Related Products/Brands, But Not Source
`
`In Relationship, But Not Source or Related
`Products/Brands
`
`
`
`Adjusted Findings
`
`3
`
`*
`
`1
`
`
`
`
`
`--
`
`--
`
`--
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Adjusted Net of Test – Control
`
`4%
`
`-
`
`0%
`
`=
`
`4%
`
`
`
`
`
`
`5 Verbatim comments from respondents who name “Balance Bar” are attached to Appendix D of this Report.
`
`HIGHLY CONFIDENTIAL
`
`

`
`18
`
`V. CONCLUSIONS AND OPINIONS
`
`35.
`
`Based on the results of this research, when current and prospective purchasers of all
`
`natural snack bars are exposed to the Earth Balance word mark in connection with all
`
`natural snack bars, there is no likelihood of confusion that these consumers will falsely
`
`believe this snack bar comes from or is related to Balance Bar.
`
`36.
`
`Overall, it is my opinion that GFA’s use of the Earth Balance name in connection with all
`
`natural snack bars causes no likelihood of confusion with Balance Bar.
`
`Pursuant to 28 U.S.C., Section 1746, I declare under penalty of perjury under the laws of the
`
`United States that the foregoing is true and correct.
`
`Executed on April 16, 2014 in Friday Harbor, Washington.
`
`Philip Johnson
`
`HIGHLY CONFIDENTIAL
`
`

`
`
`
`
`
`APPENDIX A
`
`• Philip Johnson Curriculum Vitae
`• Recent Cases In Which Philip Johnson Has Testified
`
`
`
`
`
`HIGHLY CONFIDENTIAL
`
`

`
`
`
`
`
`PHILIP JOHNSON
`
`CURRICULUM VITAE
`
`
`
`Philip Johnson is the former Chief Executive Officer of Leo J. Shapiro & Associates, L.L.C., a Chicago-
`
`based market research and behavioral consulting company. Currently, Mr. Johnson is the President of
`
`JJG Group, LLC, a market research company specialized in providing litigation-related research services.
`
`
`
`Mr. Johnson has designed and supervised hundreds of surveys measuring consumer behavior and opinion,
`
`employing a wide range of research techniques. His area of expertise is in the use of survey research as a
`
`tool in litigation, including jury selection and trademark disputes.
`
`
`
`Mr. Johnson has offered testimony regarding survey evidence on over eighty occasions in both Federal
`
`and State courts. In addition, he has offered survey research in matters before the Federal Trade
`
`Commission, The Food and Drug Administration, the Patent and Trademark Office, and the Trademark
`
`Trial and Appeal Board. Mr. Johnson has designed, conducted, and reported survey evidence on behalf of
`
`both plaintiffs and defendants in various cases. The topics covered in these litigation related surveys
`
`include matters related to likelihood of confusion, secondary meaning, genericness, dilution, false
`
`advertising, change of venue, and unfair competition.
`
`
`
`Part of Mr. Johnson's training has been through working with Dr. Leo J. Shapiro, the Founder of Leo J.
`
`Shapiro & Associates, L.L.C.; the late Dr. Philip M. Hauser, a former Director of the U. S. Census
`
`
`
`Philip Johnson, JJG GROUP LLC, PO BOX 1909, FRIDAY HARBOR, WA 98250
`
`

`
`
`
`2
`
`
`
`
`
`Bureau; and the late Dr. Hans Zeisel, who made significant contributions in the application of social
`
`science to the solution of legal questions.
`
`
`
`Mr. Johnson has given lectures before the American Bar Association (ABA) and the Practising Law
`
`Institute (PLI) on the use of survey research in litigation. He is a member of the American Marketing
`
`Association (AMA), the American Association for Public Opinion Research (AAPOR), and the
`
`International Trademark Association (INTA).
`
`
`
`Mr. Johnson has a B.S. degree in Psychology from Loyola University and an M.B.A. degree from the
`
`University of Chicago.
`
`
`
`

`
`
`
`
`
`
`RECENT CASES IN WHICH PHILIP JOHNSON HAS
`TESTIFIED OR OFFERED SURVEY EVIDENCE AT TRIAL...
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`GLOBEFILL INCORPORATED v. ELEMENTS SPIRITS
`INCORPORATED AND KIM BRANDI
`United States District Court for the
`Central District of California
`
`Likelihood of Confusion
`
`SHEETZ OF DELAWARE, INC. v. DOCTOR’S ASSOCIATES, INC.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`Genericness
`
`KRAFT FOODS GROUP BRANDS LLC v. CRACKER BARREL OLD
`COUNTRY STORE, INC., CBOCS PROPERTIES, INC., AND JOHN
`DOES 1-10
`United States District Court for the
`Northern District of Illinois (Eastern Division)
`
`Likelihood of Confusion
`
`PROMARK BRANDS INC. v. GFA BRANDS, INC.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`Likelihood of Confusion
`
`MOBILEMEDIA IDEAS LLC v. APPLE INC.
`United States District Court for the
`District of Delaware
`
`Patent Infringement
`
`MIXED CHICKS LLC v. SALLY BEAUTY SUPPLY LLC
`United States District Court for the
`Central District of California
`
`Likelihood of Confusion
`
`FAIR ISAAC CORPORATION v. EQUIFAX, INC., ET AL.
`United States District Court for the
`District of Minnesota
`
`Secondary Meaning
`
`
`
`NOVEMBER 2013
`
`
`
`
`
`
`
`
`
`SEPTEMBER 2013
`
`
`
`
`
`
`
`
`
`
`JUNE 2013
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`APRIL 2013
`
`
`
`
`DECEMBER 2012
`
`
`
`
`
`
`
`
`
`
`OCTOBER 2012
`
`
`
`
`
`
`
`
`
`
`NOVEMBER 2009
`
`
`
`
`
`
`
`
`
`
`
`
`
`Philip Johnson, JJG GROUP LLC, PO BOX 1909, FRIDAY HARBOR, WA 98250
`
`

`
`
`
`2
`
`
`
`
`
`
`
`
`
`
`
`
`
`THE SCOTTS COMPANY LLC v. CENTRAL GARDEN & PET
`COMPANY AND GULFSTREAM HOME & GARDEN, INC.
`United States District Court for the
`Southern District of Ohio
`
`False Advertising
`
`LUMBER LIQUIDATORS, INC. v. STONE MOUNTAIN CARPET
`MILLS, INC. d/b/a THE FLOOR TRADER
`United States District Court for the
`Eastern District of Virginia
`
`Likelihood of Confusion
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`JULY 2009
`
`
`
`
`
`
`
`
`
`JULY 2009
`
`
`
`
`
`
`
`
`
`
`

`
`
`
`
`
`DEPOSITION TESTIMONY OF PHILIP JOHNSON
`THAT HAS NOT BEEN OFFERED AT TRIAL...
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PODS ENTERPRISES, INC. v. U-HAUL INTERNATIONAL, INC.
`United States District Court for the
`Middle District of Florida (Tampa Division)
`
`JEFFREY SORENSEN v. WD-40 COMPANY
`United States District Court for the
`Northern District of Illinois (Western Division)
`
`
`MOBILEMEDIA IDEAS LLC v. RESEARCH IN MOTION LIMITED
`AND RESEARCH IN MOTION CORPORATION
`United States District Court for the
`Eastern District of Texas (Marshall Division)
`
`FAGE USA DAIRY INDUSTRY, INC., ET AL. v. GENERAL MILLS,
`INC., ET AL.
`United States District Court for the
`Northern District of New York
`
`GENERAL MILLS, INC. ET AL. v. FAGE USA DAIRY INDUSTRY,
`INC. ET AL.
`United States District Court for the
`District of Minnesota
`
`SEXY HAIR CONCEPTS, LLC v. CONAIR CORPORATION
`United States District Court for the
`Central District of California
`
`BALANCE BAR COMPANY v. GFA BRANDS, INC.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`LUV N’ CARE, LTD. AND ADMAR INTERNATIONAL, INC. v.
`MAYBORN USA, INC.
`United States District Court for the
`Southern District of New York
`
`LUV N’ CARE, LTD. v. JACKEL INTERNATIONAL LIMITED
`Fourth Judicial District Court for the
`State of Louisiana
`
`
`
`JANUARY 2014
`
`
`
`
`
`
`
`OCTOBER 2013
`
`
`
`
`
`
`
`
`
`AUGUST 2013
`
`
`
`
`
`
`
`
`
`
`MARCH 2013
`
`
`
`
`
`
`
`
`
`
`MARCH 2013
`
`
`
`
`
`
`
`
`
`
`FEBRUARY 2013
`
`
`
`
`
`
`
`JANUARY 2013
`
`
`
`
`
`
`
`NOVEMBER 2012
`
`
`
`
`NOVEMBER 2012
`
`
`
`
`
`
`Philip Johnson, JJG GROUP LLC, PO BOX 1909, FRIDAY HARBOR, WA 98250
`
`

`
`
`
`2
`
`EMERSON ELECTRIC CO. v. ANAHEIM MANUFACTURING CO.
`United States International Trade Commission
`Washington, D.C.
`
`FARM FLEET SUPPLIES, INC. v. BLAIN SUPPLY, INC.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`THE REINALT-THOMAS CORPORATION d/b/a DISCOUNT TIRE v.
`AKH COMPANY, INC.
`United States District Court for the
`District of Arizona
`
`SEXY HAIR CONCEPTS, LLC v. CONAIR CORPORATION
`United States District Court for the
`Central District of California
`
`MCDONALD’S CORPORATION v. MCSWEET, LLC
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`TECHNOLOGY PATENTS LLC v. DEUTSCHE TELEKOM AG,
`ET AL.
`United States District Court for the
`District of Maryland
`
`BLAIN SUPPLY, INC. v. RUNNING SUPPLY, INC.
`United States District Court for the
`Western District of Wisconsin
`
`LUCENT TECHNOLOGIES, INC. v. MICROSOFT CORPORATION
`United States District Court for the
`Southern District of California
`
`ROSETTA STONE LTD. v. TOPICS ENTERTAINMENT, INC.
`United States Dist

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket