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`DOCUMENT
`
`(FILED ON PAPER — ENTIRE DOCUMENT EXCEEDS 100 PAGES)
`
`*'d HO O (D (D .9:D‘ '0 Z 0
`
`.
`
`91212680
`
`01/23/2015
`
`Part 1 of
`
`Declaration of Sarah Butler In Support of Applicant
`Real Foods Pty LTD’s Motion for Summary
`Judgment
`
`91212680
`
`

`
`TTAB
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91212680 (Parent)
`Opposition No. 91213587
`CERTIFICATE OF EXPRESS MAILING
`
`NUMBER ‘Em 2 "I Q Q ‘i Zu SISLO
`
`DATE or DEPOSIT: January Z_?, 2015
`I hereby certify that this paper is being deposited with the
`Unlmd States Postal Service “EXPRESS MAIL POST
`OFFICE TO ADDRESSEE” service under 37 C.F.R. § 1.10
`on the date indicated above and is addressed to: Trademark
`Trial and Appeal Board, U.S. Patent and Trademark Office,
`
`P.O. Box 1451, Alexan la, ?22313-1451
`
`7
`
`I
`
`Ami Bhatt
`
`
`FRITO-LAY NORTH AMERICA, INC.
`Opposer,
`
`vs
`
`REAL
`
`
`
`
`
`
`
`Applicant.
`
`DECLARATION OF SARAH BUTLER IN SUPPORT OF
`APPLICANT REAL FOODS PTY LTD.’S MOTION FOR SUMMARY JUDGMENT
`
`1, Sarah Butler, declare as follows:
`
`1.
`
`I am a Vice President working in the Intellectual Property and Survey and Sampling
`
`Practices of NERA Economic Consulting (hereinafter, “NERA”), a firm that specializes in providing
`
`expert statistical, survey, economic, and financial research analysis.
`
`2.
`
`I submit this declaration in support of the motion for summary judgment filed by
`
`Applicant Real Foods Pty Ltd. (hereinafier “Real Foods”). NERA was retained by counsel for Real
`
`Foods to conduct research to determine whether consumers regard the term “CORN THINS”
`
`primarily as a brand name or as a common name.
`
`In conducting the research, I employed what is
`
`known as a “Teflon” survey design to evaluate the extent to which relevant consumers view “CORN
`
`THINS” primarily as a brand name for a product.‘
`
`3.
`
`Specifically, under my direction and supervision, NERA conducted an online survey
`
`with a nationwide sample of adults aged 18 or older who were past or prospective purchasers of
`
`' The survey is designed in accordance with the methods and format set forth in E. I. DuPont de Nemours & Co. v.
`Yoshida Int ‘I, Inc., 393 F.Supp. 502 (E.D.N.Y. 1975).
`
`|l|||||||||||||l||||||ll||||||l||||||ll|||||||l||||||l||||||
`01-23-2015
`U 5 Patent 5. TMOYE/TM Ma‘! REL‘! Cl #11
`
`1
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`

`
`popped com cakes (hereinafter the “NERA Survey”). The NERA Survey included consumers from
`
`all four census regions, a range of age groups and men and women. The final sample included 221
`
`qualified respondents.
`
`4.
`
`As set forth in detail below, a total of 52 percent of these respondents (114 people)
`
`regarded “CORN THINS” as a brand name. The NERA Survey also showed that 32 percent of
`
`respondents thought “CORN THINS” was a common name and 16 percent of consumers did not
`
`know or had no opinion about whether the term “CORN THIN S” was a brand name or a common
`
`name. Among those survey respondents who had an opinion, 62 percent thought that “CORN
`
`THINS” was a brand name.
`
`I.
`
`Qualifications
`
`5.
`
`As noted above,
`
`I am a Vice President with NERA where I participate in the
`
`Intellectual Property and Survey and Sampling Practices. Founded in 1961, NERA has offices in the
`
`United States, Europe, South America, Asia, Australia and New Zealand, and is a leading economic
`
`and quantitative consulting firm that provides expert statistical, survey, economic, and financial
`
`research analysis. NERA employs over 300 consulting professionals and its experts provide studies,
`
`reports, and testimony for government authorities and the world’s
`
`leading law firms and
`
`corporations. NERA’s experts have represented many trademark owners, including owners of some
`
`of the world’s most famous brands, in trademark and trade dress matters.
`
`6.
`
`I have worked for NERA for 15 years, designing surveys, consumer research and
`
`statistical samples for major corporations as well as for the United States government and well-
`
`known not—for-profit organizations.
`
`In the course of my career at NERA, I have designed and
`
`implemented over 100 surveys and have testified on matters related to trademarks, trade dress, and
`
`brand recognition.
`
`

`
`7.
`
`Among my responsibilities, I conduct survey research, market analysis, and sampling
`
`analysis on a wide range of topics regarding business and consumer decision making, consumer
`
`choice, and consumer behavior. Throughout my career, I have conducted numerous studies for
`
`leading corporations and government agencies involving research on consumers, employees, and
`
`businesses. My work has been included in many lawsuits involving issues of trademark and trade
`
`dress, false advertising, and secondary meaning.
`
`I am a member of the American Association of
`
`Public Opinion Research, the American Statistical Society, the Intellectual Property Section of the
`
`American Bar Association, and the International Trademark Association (INTA), where I have
`
`worked as a reviewer for The Trademark Reporter.
`
`8.
`
`During my career in academic and commercial research, I have personally conducted
`
`focus groups, in-depth interviews, and surveys of consumers and professionals.
`
`In addition, I have
`
`taught courses focused on or involving research methodologies in both the United States and Europe.
`
`9.
`
`I have substantial experience conducting and using surveys and focus groups to
`
`measure consumer opinions and behaviors regarding products and services including purchase
`
`processes, product attributes, branding and positioning, market segmentation, new product research,
`
`and communications strategies.
`
`I have submitted expert reports, been deposed, and have testified at
`
`trials. My prior testimony and publications are listed in the copy of my current resume, which is
`
`appended hereto as Exhibit A.
`
`II.
`
`Compensation
`
`10.
`
`NERA is being compensated for my services in this matter at my standard rate of
`
`$525 per hour. No part of NERA’s or my compensation depends on the outcome of this litigation.
`
`Throughout this report, I use the terms “I” and “my” to refer to work performed by me and/or others
`
`under my direction.
`
`

`
`III.
`
`Survey Methodology
`
`1 1.
`
`The NERA Survey design follows the generally accepted principles for the design of
`
`surveys to be used as evidence in litigation? In general, the design of a reliable survey requires
`
`careful attention to the following key areas:
`
`I The definition of the relevant population;
`
`I The procedures for sampling from the relevant population;
`
`I The survey questions used;
`
`I The nature of the specific stimuli shown to respondents; and,
`
`I The protocol for calculating the results from the survey.3
`
`I address below each of these key areas in relation to the NERA Survey.
`
`A.
`
`Definition of the Relevant Population
`
`12.
`
`The relevant population in the NERA Survey was comprised of consumers who have
`
`purchased, either for themselves or for someone else, popped corn cakes in the last three months or
`
`thought they were likely to purchase popped corn cakes, for themselves or for someone else, in the
`
`next three months.
`
`B.
`
`Sampling of the Relevant Population
`
`13.
`
`To sample the relevant population, NERA engaged Survey Sampling International
`
`(hereinafter “SSI” or “Panel Vendor”),4 a leading research organization specializing in the provision
`
`2 Diamond, S. (2011) “Reference Guide on Survey Research” in the Reference Manual on Scientific Evidence Third
`Edition, Federal Judicial Center, available at
`http://www.fjc.gov/public/pdfinsfllookup/SciMan3D09.pdfl$flle/SciMan3D09.pdfi Manualfor Complex Litigation,
`Fourth, § 11.493 at p. 102 (Federal Judicial Center 2004).
`
`3 The Manualfor Complex Litigation, supra, identifies these key areas as:
`
`-
`-
`-
`-
`
`the population was properly chosen and defined;
`the sample chosen was representative of that population;
`the data gathered were accurately reported; and
`the data were analyzed in accordance with accepted statistical principles.
`
`‘ For a detailed description of SSI’s quality controls and methodological standards, see
`http://www.surveysampling.com/en/who-we-are/ssi—media/F835El97FF2E4l 5E83A9BOElAD03A7C9.ashx.
`
`

`
`of representative samples and online survey hosting and management, which used its online panel to
`
`sample consumers aged 18 or older. Potential respondents were contacted by the Panel Vendor using
`an online survey panel. The panel used for this study complies with the standards for survey research
`
`set forth by the Council of American Survey Research Organizations (CASRO), a membership-based
`
`organization representing leading international and global survey research companies, which
`
`promulgates the CASRO Code of Standards and Ethics for Survey Research.
`
`14.
`
`The Panel Vendor uses a variety of quality control measures to ensure the reliability
`
`and integrity of the responses it provides.
`
`5 To qualify for the NERA Survey, respondents had to
`
`indicate that they were 18 years of age or older.
`
`In addition, each respondent had to pass several
`
`quality control checks. For example, respondents had to enter their gender and birthdate and these
`
`entries had to correspond with the information associated with the respondent file kept by the Panel
`
`Vendor. Respondents were also screened out based on other criteria; for example, they were
`
`ineligible if they worked for firm engaged in market research (or had a family member working in
`
`that industry) or if they, or a family member, worked for a company that engaged in the manufacture
`
`or sale of popped corn cakes. Screen shots of the survey screener are appended hereto as Exhibit B,
`
`and a copy of the survey questionnaire with programming and quality control measures is appended
`
`hereto as Exhibit C.
`
`15.
`
`Further, respondents answered a number of questions about their grocery shopping
`
`habits, and to qualify for the NERA Survey had to answer “popped corn cakes” to one of the
`
`following questions:
`
`5 For example, the Panel Vendor confirms the identity ofrespondents using digital fingerprinting and requires a
`home address upon registration. See: http://www.surveysampling.com/our-
`company/~/link.aspx?_id=C2671SD571264918BCBFOC22F2B8D3B8&_z=z for a detailed description.
`
`

`
`Have you purchased, whether for you or for someone else, any of the specific items listed
`below in the past three months ...? Please select all that apply.
`
`1 . Greek yogurt
`
`2. Whole grain bread
`
`3. Popped corn cakes
`
`4. Granola or energy bars
`
`5. None of these
`
`6. Don’t know/No opinion
`
`or
`
`Are you likely to purchase, whether for you or for someone else, any of the specific items
`listed below in the next three months? Please select all that apply.
`
`1. Greek yogurt
`
`2. Whole grain bread
`
`3. Popped corn cakes
`
`4. Granola or energy bars
`
`5. None of these
`
`6. Don’t know/No opinion
`
`16.
`
`To ensure that the population included in the NERA Survey was representative of the
`
`relevant population, I instructed the Panel Vendor to target a geographic distribution that mirrored
`
`that of the general population of the U.S. As intended,
`
`the regional distribution of survey
`
`respondents is similar to the geographic distribution of the U.S. population. Table 1 below compares
`
`the geographic distribution of the NERA Survey respondents with that of the U.S. population aged 18
`
`and older.
`
`

`
`Table 1
`
`Geographic Location of Survey Respondents
`
`Compared to U.S. Population
`
`NERA Survey
`
`U.S. Population
`
`100.0%
`
`Area
`
`Count
`
`Share
`
`Northeast
`
`South
`
`Midwest
`
`West
`
`Total
`
`20%
`
`39%
`
`19%
`
`22%
`
`45
`
`86
`
`42
`
`48
`
`221
`
`Share
`
`18%
`
`Source: American Community Survey - Census Bureau Population Estimates
`for Adults 18 years or older, 2012.
`
`17.
`
`The NERA Survey also included both men and women and a variety of age groups.
`
`As shown in Table 2, the gender distributions for the adults who were determined eligible and
`
`completed the NERA Survey are similar to the distributions for all adults aged 18 or older in the U.S.
`
`population. Also as shown in Table 2, the age distribution of the adults who were determined
`
`eligible for the NERA Survey is similar to that of the U.S. population.
`
`

`
`Table 2
`
`Age and Gender Distribution for Survey Respondents
`
`Compared to U.S. Population
`
`NERA Survey
`
`U.S. Population
`
`Source: American Community Survey - Census Bureau Population Estimates
`for Adults 18 years or older, 2013.
`
`C.
`
`Survey Questions and Procedures
`
`18.
`
`To solicit respondents, the Panel Vendor sent panel members across the United States
`
`an email invitation to participate in a study.6 Respondents began the NERA Study by completing the
`
`screening questions described above.
`
`If they were younger than 18 years of age, did not pass the
`
`quality control checks, or matched a distribution quota that was already filled, they were thanked and
`
`the survey was terminated. Respondents who completed the screening questions and were
`
`determined to be eligible for the study continued to the main questionnaire.
`
`19.
`
`The main questionnaire began with an explanation of terms that might be associated
`
`with snack foods. Specifically, the NERA Survey stated:
`
`6 As is standard practice, the study was double-blind. Neither the Panel Vendor nor the survey respondents knew the
`purpose or sponsor of the study.
`
`

`
`We would now like to ask about your understanding of some names or terms
`concerning snack foods. For each name or term please indicate whether you think it is
`a brand name or a common or generic name. A brand name refers to a snack food
`from one company or source and a common or generic name refers to a type of snack
`food.
`
`20.
`
`Respondents were then provided with examples of a brand name for a snack food
`
`and of a common name for a type of snack food. Half of the respondents in the NERA Survey
`
`were provided with the example of the brand name first while the other half were provided with
`
`the example of the common name first. The examples provided to respondents were as follows:
`
`Here are two examples. CHEESE NIPS is a brand name whereas CRACKERS is a
`common or generic name for a type of snack food. SUN CHIPS is a brand name
`whereas CHIPS is a common or generic name for a type of snack food.
`
`21.
`
`Respondents were then asked to complete a mini-test
`
`to ensure that
`
`they
`
`understood the difference between a brand name and a common name, as follows:
`
`The name is CHEEZ DOODLES. Is this a...
`
`1. Brand name
`
`2. Common name
`
`3. Don’t know/ No opinion
`
`The name is GRAHAM CRACKER. Is this a...
`
`1. Brand name
`
`2. Common name
`
`3. Don’t know/ No opinion
`
`22.
`
`The order
`
`in which respondents
`
`saw the different mini-test examples was
`
`randomized, such that half of the sample was presented with the CHEEZ DOODLES example first
`
`and the other half was presented with the GRAHAM CRACKER example first.
`
`23.
`
`In addition, the order in which response categories was presented to respondents was
`
`also randomized, such that half of the sample was asked whether the example was a “brand name or
`
`

`
`common name,” and the other half was asked whether the example was a “common name or a brand
`
`name.”
`
`24.
`
`Respondents had to answer both of the questions correctly—that is, identify CHEEZ
`
`DOODLES as a brand name and GRAHAM CRACKER as a common name——to be eligible to
`
`complete the NERA Survey.
`
`D.
`
`Stimuli Shown
`
`25.
`
`Respondents who understood the difference between a brand name and a common
`
`name were then shown a series of names. The series of names included CORN THINS and seven
`
`control names. The control names provide a measure of the extent to which consumer perceptions of
`
`CORN THINS as a brand name are meaningful relative to other brand and common names.
`
`26.
`
`Of the seven controls, three brand names were used, namely: GRANOLA FLATS,
`
`KALE KRUNCH and PRETZEL WAVES. The remaining four controls were common names:
`
`WATER CRACKERS, VEGGIE CHIPS, OYSTER CRACKERS and MACADAMIA NUTS.
`
`27.
`
`For each of the control names and for CORN THINS, respondents were asked to
`
`indicate whether the name was a brand or common name. The response choices of “brand” or
`
`“common” rotated such that half of the sample saw “brand name” as the first answer choice and half
`
`of the sample saw “common name” as the first answer choice. Respondents were also provided with
`
`a “Don’t know / No opinion” answer choice. As an example, respondents were asked:
`
`The next name is CORN THINS. Is this a...
`
`1. Brand name
`
`2. Common name
`
`3. Don’t know / No opinion
`
`28.
`
`Afier completing all eight questions about the control names and CORN THINS,
`
`respondents were thanked for their time and participation, and the NERA Survey was completed.
`
`10
`
`

`
`IV.
`
`Survey Results
`
`29.
`
`A total of 221 respondents completed the NERA Survey. The survey data is
`
`appended hereto as Exhibit D.
`
`30.
`
`When asked whether CORN THINS was a brand name or a common name, the
`
`majority of respondents indicated that it was a brand name. As shown in Table 3, 52 percent (114
`
`respondents) indicated CORN THINS was a brand name, 32 percent indicated it was a common
`
`name and 16 percent indicated that they did not know or had no opinion.
`
`Table 3
`
`Responses to Name
`
`CORN THINS
`
`Response
`
`Brand Name
`
`Common Name
`
`Don't know/No opinion
`
`Count
`
`1 14
`
`70
`
`37
`
`Total
`1 00%
`
`31.
`
`As shown in Table 4 below, of those who had an opinion, 62 percent indicated that
`
`CORN THINS was a brand name and 38 percent indicated it was a common name.
`
`Table 4
`
`Responses to name
`
`CORN THINS Of Those With Opinion
`
`Percent
`
`62%
`
`38%
`
`Response
`
`Count
`
`Brand Name
`
`Common Name
`
`Total
`
`1 14
`
`70
`
`11
`
`

`
`32.
`
`As described above, the NERA Survey had seven control names to demonstrate the
`
`extent to which respondents understood the difference between brand and common names and also to
`
`provide relative measures of brand recognition.
`
`33.
`
`The majority of respondents were able to appropriately identify the common names in
`
`the NERA Survey. As shown in Table 5 below,
`
`they were able to correctly characterize
`
`MACADAMIA NUTS, OYSTER CRACKERS, WATER CRACKERS and VEGGIE CHIPS as
`
`common names.
`
`Table 5
`
`Responses to Common Names
`
`Response
`
`Macadamia
`Nuts
`
`Oyster
`Crackers
`
`Water
`Crackers
`
`Veggie
`Chips
`
`Don't know/ No opinion
`
`Brand Name
`
`Common Name
`
`12
`
`

`
`34.
`
`As shown in Table 6, respondents were also able to identify the brand names shown.
`
`A majority of respondents indicated that KALE KRUNCH and PRETZEL WAVES are brand names
`
`and slightly less than a majority indicated that GRANOLA FLATS is a brand name.
`
`Table 6
`
`Responses to Brand Names
`
`Kale Krunch
`
`Pretzel Waves
`
`Granola Flats
`
`Response
`
`Brand Name
`
`Common Name
`
`Don't know/ No opinion
`
`13%
`
`77%
`
`11%
`
`12%
`
`60%
`
`28%
`
`12%
`
`49%
`
`38%
`
`35.
`
`When limiting the responses to those who have an opinion, 95 percent of respondents
`
`indicated MACADAMIA NUTS was a common name, 86 percent of respondents indicated OYSTER
`
`CRACKERS was a common name, 89 percent of respondents indicated WATER CRACKERS was a
`
`common name, and 70 percent of respondents indicated VEGGIE CHIPS was a common name.
`
`These results are provided in Table 7.
`
`13
`
`

`
`
`
` Table 7
`Responses to Common Names
`Of Those With Opinion
`
`
`
`
`
`Response
`
`Macadamia
`Nuts
`
`Oyster
`Crackers
`
`Water
`Crackers
`
`Veggie Chips
`
`Brand Name
`
`5%
`
`14%
`
`Common Name
`
`
`
`1 1%
`
`89%
`
`100%
`195
`
`30%
`
`70%
`
`100%
`217
`
`
`
`36.
`
`When limiting the responses to those who have an opinion for the brand names, 87
`
`percent of respondents indicated KALE KRUNCH was a brand name, 68 percent of respondents
`
`indicated PRETZEL WAVES was a brand name, 62 percent indicated CORN THINS was a brand
`
`name, and 57 percent indicated GRANOLA FLATS was a brand name. These results are shown
`
`below in Table 8.
`
`Table 8
`
`Responses to Brand Names
`
`Of Those With Opinion
`
`43%
`
`Response
`
`Kale Krunch
`
`Pretzel Waves
`
`Corn Thins
`
`Granola Flats
`
`Brand Name
`
`Common Name
`
`87%
`
`13%
`
`68%
`
`32%
`
`62%
`
`38%
`
`57%
`
`37.
`
`These results reliably demonstrate that the surveyed consumers understand the
`
`difference between brand and common names and think the primary significance of the name CORN
`
`THINS is as a brand name, not a common name.
`
`14
`
`

`
`V.
`
`Conclusions
`
`38.
`
`The NERA Survey was designed and executed in accordance with scientific
`
`standards and the evidentiary requirements for surveys submitted in a legal proceeding, and the
`
`survey provides representative information regarding the primary significance of CORN THINS to
`
`the relevant consumer population.
`
`39.
`
`The NERA Survey demonstrates that the primary significance of the name CORN
`
`THINS to past and prospective purchasers of popped corn cakes is as a brand name, and not a
`
`common (generic) name. A total of 52 percent of respondents thought that CORN THINS was a
`
`brand name and, of those who have an opinion, 62 percent thought that CORN THINS was a brand
`
`name. Accordingly, my survey supports the entry of summary judgment in favor of Real Foods
`
`dismissing any claim in this proceeding alleging that the mark CORN THINS is generic.
`
`40.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`W
`w r*'‘.°‘’‘.°
`Executed thisgé day oflanuary, 2015 in 5
`_, California.
`
`
`
`15
`
`

`
`

`
`N E R A
`_
`‘
`ECODOITIIC Consulting
`
`Sarah Butler
`Vice President
`
`National Economic Research Associates. Inc
`4 Embarcadero, Suite 400
`San Francisco. CA 94111
`+1415 2911000 Fax +1415 2911010
`Direct dial: + 1 415291 1022
`sarah.but|er@nera.com
`vvww.nera.com
`
`SARAH BUTLER, M.A.
`VICE PRESIDENT
`
`Ms. Butler is an expert in survey research, market research, sampling, and statistical analysis.
`She has applied her expertise in a wide range of litigation and strategic business cases. Her
`litigation and project experience includes survey research, market research, the design of
`samples, and the statistical and demographic analysis of large data files in a number of areas
`including:
`
`Intellectual Property
`o Trademark and Trade Dress Infringement: Design, analysis, and critique of surveys used
`to measure consumer confusion, secondary meaning, and dilution in trademark and trade
`design infringement cases.
`
`-
`
`o
`
`False and Misleading Advertising: Design, analysis and critique of surveys used to
`measure consumer perceptions and the materiality of advertising claims.
`
`Patent Infringement: Sample designs and surveys to the value of patented feature of a
`larger product and to establish rates at which infringing material exist in populations of
`products.
`
`o Copyright infringement: Sampling plans and analysis of the rates of infringing material
`in populations of shared information (such as through websites or other sharing medium).
`
`Mass Torts/Class Actions
`- Conduct surveys and design samples providing evidence on issues of commonality and
`consumers’ awareness of key documents or facts and reliance on representations.
`
`o Analyze large databases of claims files to generate invoices, estimate future liabilities and
`calculate policy shares for insurer liabilities in asbestos, tobacco and pharmaceuticals.
`
`a Design, analyze and critique surveys and sampling plans used to evaluate employment
`and promotion records. Review and design surveys for purposes of estimating key facts
`
`

`
`Sarah Butler
`
`in labor class actions including time to complete activities, exempt/nonexempt activities,
`and meal and rest break issues.
`
`Antitrust
`
`o Design, analysis and critique of surveys and other market research used as evidence of
`consumer purchasing and switching behavior in the areas of CPG, entertainment,
`automobiles, public transportation, sports and consumer electronics.
`
`o Design, analysis and critique of surveys used to demonstrate consumer price sensitivities
`and willingness to pay.
`
`Prior to joining NERA, Ms. Butler worked in market research, conducting survey research, focus
`groups and in-depth interviews. She has recently completed an article for the ABA Trial Practice
`Newsletter and has written on trademark infringement and the intemet and surveys in litigation.
`
`Educafion
`
`Temple University
`ABD Applied Sociology, coursework, exams and dissertation proposal complete
`(2005).
`
`Temple University
`M.A. Sociology, (2000).
`
`Trinity College, Dublin Ireland
`M.Phil. (1997).
`
`Wellesley College
`B.A. Sociology and History (with honors). (1995).
`
`Professional Experience
`
`July 2006 - Present
`
`Senior Consultant — Vice President
`
`Oct 2005 — May 2006
`
`Jan 2003 — Oct 2005
`
`NERA Economic Consulting
`San Francisco, California, USA
`
`Special Consultant
`NERA Economic Consulting
`London, England
`
`Senior Analyst - Consultant
`NERA Economic Consulting
`Philadelphia, Pennsylvania, USA
`
`NERA Economic Consulting
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`2
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`

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`Sarah Butler
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`2002 - 2003
`
`Consultant
`
`Oct 1998 - Jan 2002
`
`Sept 1998 — May 2003
`
`Jan 1997 — Feb 1998
`
`Integrated Marketing Associates
`Bryn Mawr, PA, USA
`
`Research Associate - Analyst
`NERA Economic Consulting
`Philadelphia, Pennsylvania, USA
`
`Adjunct Professor
`Temple University
`Philadelphia, Pennsylvania, USA
`
`Manager of Member Research
`Society for Neuroscience
`Washington DC, USA
`
`Expert Analysis and Testimony
`
`KIND, LLC* V. Clif Bar & Company. United States District Court Southern District of New
`York Research on actual confusion related to trade dress. [Expert Report: April 1 1, 2014.
`Preliminary Injunction Testimony, April 28, 2014.]
`
`T-Mobile US, Inc. and Deutsche Telekom AG* v. Aio Wireless LLC. United States District
`
`Court Southern District of Texas Houston Division Survey and Expert report on issues of fame
`and dilution. [Expert Report: August 13, 2013. Deposition October 4, 2013.]
`
`Reynolds Consumer Products, Inc.* V. Handi-Foil Comoration. United States District Court,
`Eastern District of Virginia, Alexandria Division. Survey and Expert report on issues of trade
`dress infringement. [Expert Report: July 12, 2013. Deposition September 9, 2013, Trial
`Testimony March 25"‘, 2014.]
`
`Shurtape Technologies, LLC and Shurtech Brands, LLC* V. 3M Company. United States District
`Court, Western District of North Carolina, Statesville Division. Expert rebuttal report on issues
`of trademark confusion. [Expert Report: July 2, 2013. Deposition July 30, 2013.]
`
`Eastman Chemical Company v. Plastipure, Inc., and Certichem, Inc.*, United States District
`Court, Western District of Texas, Austin Division. Survey and Expert rebuttal report on issues of
`false advertising. [Expert Report: March 1, 2013. Deposition: March 15, 2013.]
`
`Select Comfort Cor_°poration,* v. The Sleep Better Store, LLC., United States District Court,
`District of Minnesota. Survey and Expert report for evidence of secondary meaning. [Expert
`report: March 1, 2013.]
`
`In re: Whirlpool Cogp. Front-Loading Washer Products Liability Litigation, United States
`District Court, For the Northern District of Ohio, Eastern Division. Designed and implemented a
`
`NERA Economic Consulting
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`Sarah Butler
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`survey to evaluate the discount consumers would require if disclosures regarding front-loading
`washing machines were made prior to purchase. [Expert Report: November 2, 2012, Deposition
`December 13, 2012, Rebuttal Report: April 26, 2013, Deposition: January 15, 2014.]
`
`Apple Inc.* vs. Samsung Electronics Co. LTD et al, United States District Court, Northern
`
`District of California San Jose Division. Consulting expert on surveys related to confusion and
`dilution in a trade dress infringement matter involving smart phones and tablet computers.
`[March 2012]
`
`Daniel Taheri, M.D. and Valencia Dermatology and Laser Center and Parviz Taheri vs. Aetna U.
`S. Healthcare, Inc. and Aetna U. S. Healthcare and Aetna Health of California, Inc. American
`Arbitration Association. Statistical expert appointed by Association to design sample to estimate
`amounts owed on claims. [Work and Testimony conducted September 2010 — September 201 1]
`
`Children Without Borders, Inc. vs. Medecins Sans Frontiéres d/b/a Doctors Without Borders*
`United States District Court for the District of Massachusetts. Design and implement survey for
`evidence in a likelihood of confiision case. [Expert Report: July 25, 2011]
`
`Merck Eprova AG vs. Brookstone Pharmaceuticals, L.L.C. a/k/a Acella Pharmaceuticals*,
`United States District Court, Southern District of New York. Expert report on issues of false
`advertising and survey used as evidence of misleading and materiality claims. [Expert Report:
`July 18, 2011. Deposition: September 13, 2011. Trial Testimony: November 18, 2011]
`
`Georgia-Pacific Consumer Products LP vs. Global Tissue Group, Inc.* United States Patent and
`Trademark Office, Trademark Trial and Appeal Board. Expert report on issues of trademark
`confusion and secondary meaning. [Expert Report: July 8‘ , 2011. Deposition: September 9,
`2011]
`
`CHEK-MED Systems, Inc.* vs. PMT Cor_‘p. and Permark, Inc. United States District Court,
`Middle District of Pennsylvania. Design and implement survey for evidence in false and
`misleading advertising claims. [Expert Report: June 22nd, 2011. Deposition: August 1 1, 2011]
`
`National Association of Inde endent Housin Professionals Inc.* vs. Board of Governors of the
`Federal Reserve System. et. al. United States District Court, District of Columbia. Expert report
`on issues of false and misleading advertising and materiality claims. [Expert Report: March 24”‘,
`2011]
`
`Sciele Pharm Inc. vs. Brookstone Pharmaceuticals L.L.C. a/k/a Acella Pharmaceuticals*
`United States District Court, Northern District of Georgia, Atlanta Division. Expert report on
`issues of false advertising and survey used as evidence of misleading and materiality claims.
`[Expert Report: September 22"d, 2010. Deposition: December 15‘, 2010]
`
`PamLab, L.L.C. and Metabolite Laboratories, Inc. vs. Brookstone Pharmaceuticals, L.L.C. a/k/a
`Acella Pharmaceuticals*, United States District Court, Eastern District of Louisiana. Expert
`report on issues of false advertising and survey used as evidence of misleading and material
`claims. [Expert Report: September 14"‘, 2010. Deposition: September 29"‘, 2010]
`
`NERA Economic Consulting
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`4
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`Sarah Butler
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`DirecTV, Inc.* vs. Elephant Group, Saveology.com et al., United States District Court, Central
`District of California, Western Division. Consulting expert on likelihood of confusion in a
`trademark dispute over sale of trademarks as keywords. [2010]
`
`Consumerlnfo.com vs. J Willims and Edirect*, United States District Court, Central District of
`California, Western Division. Design and implement survey testing confusion and misleading
`advertising in a trademark dispute [20l0].
`
`Rosetta Stone LTD.* vs. Google, Inc. United States District Court, Eastern District of Virginia,
`Alexandra Division. Assist
`in design of a likelihood of confusion survey with regard to
`trademark or branded keyword searches using the Google search engine. [2010]
`
`Confidential client. Advise and consult on rebuttal strategies in intemet keyword case [2009].
`
`Confidential client. Design and implement research used in false advertising suit for pre-paid
`international telephone calling cards [2009].
`
`Mary Kay, Inc.* vs. Amy Weber, Scott Weber, and Touch of Pink Cosmetics, United States
`District Court, Northern District of Texas, Dallas Division. Consulting expert on likelihood of
`confusion with regard to sale of branded products on a website [2008].
`
`American Airlines, Inc.* vs. Google, Inc. United States District Court, Northern District of
`
`Texas Fort Worth Division. Consulting expert in likelihood of confusion with regard to
`trademark or branded keyword searches using Google [2008].
`
`Rocky Brands, Inc. and Rocky Brands Wholesale, LLC.* vs. Glen Bratcher, Westwood
`Footwear and Accessories, LLC and Nantong Hong Yi Wang Shoes Co., LTD., United States
`District Court, Southern District of Ohio, Eastern Division. Consulting expert on likelihood of
`confusion with regard to trade dress of footwear [2008].
`
`Jack Branning et al. vs. Apple Computer, Inc.* Expert analysis on issues of sampling records in a
`consumer class action. [Testimony before judge, April 2008].
`
`* Retaining party
`
`Publications and Presentations
`
`“Effective Use of Surveys in Trademark Litigation,” (August, 2014) Knowledge Group Webinar.
`
`“The Use of Statistical Sampling Post-Duran,” (August, 2014) Law360.
`
`“An assessment of the nonmarket benefits of the Water Framework Directive for households in
`England and Wales,” with Metcalfe, Baker, Andrews, Atkinson, Bateman, Carson, East, Gueron,
`Sheldon and Train in Water Resources Research, 48:W10516. (Paper awarded Editor’s Choice
`Award for 2013).
`
`NERA Economic Consulting
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`Sarah Butler
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`ABA Webinar “The Use of Surveys in Advertising Substantiation” (June 23, 2011).
`
`“Meeting the New Standards for Reasonable Royalties,” (February, 2011) with Mario Lopez.
`Law3 60.
`
`“Survey Evidence in False Advertising Cases,” (Winter, 2010). The Antritrust Trial Practice
`Newsletter.
`
`“The Use of Surveys in Litigation: Recent Trends,” (April, 2010) with Kent Van Liere. National
`Economic Research Associates, Inc.
`
`“Emerging Issues in the Use of Surveys in Trademark Infringement on the Web,” with Kent Van
`Liere. Paper published in the Advanced Trademark & Adve