ESTTA Tracking number:
`
`ESTTA1313134
`
`Filing date:
`
`09/29/2023
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91247241
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`PepsiCo, Inc.
`
`PAUL J REILLY
`BAKER BOTTS LLP
`2001 ROSS AVENUE
`DALLAS, TX 75201
`UNITED STATES
`Primary email: nytmdpt@bakerbotts.com
`Secondary email(s): julie.albert@bakerbotts.com, paul.reilly@bakerbotts.com
`212-408-2500
`
`Testimony For Plaintiff
`
`Paul J. Reilly
`
`paul.reilly@bakerbotts.com, julie.albert@bakerbotts.com, car-
`oline.duncan@bakerbotts.com, lucy.solinka@bakerbotts.com,
`john.mitchell@bakerbotts.com, nytmdpt@bakerbotts.com
`
`/Paul J. Reilly/
`
`09/29/2023
`
`2023.09.28 Decl of Survey Expert Sarah Butler.pdf(253505 bytes )
`Exhibit 1 - Butler Expert Report.pdf(5348903 bytes )
`Exhibit 2.pdf(84147 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`IN THE MATTER OF APPLICATION SERIAL NOS. 88/152,501, 88/205,171:
`
`
`
`
`
`
`
`: ROCKSTAR
`: Rockstar Industries LLC
`: October 12, 2018
`
`: February 5, 2019
`
`: ROCKSTAR
`: Rockstar Industries LLC
`: November 26, 2018
`
`: February 5, 2019
`
`Mark 1
`Applicant
`Filed
`
`Published in
`the Official Gazette
`
`Mark 2
`Applicant
`Filed
`
`Published in
`the Official Gazette
`
`IN THE MATTER OF REG. NOS. 5,956,334, 5,439,539 and 5,892,882:
`
`: ROCKSTAR
`
`
`Mark
`: Rockstar LLC
`
`Registrant
`____________________________________x
`
`
`
`
`
`
`:
`PepsiCo, Inc.
`
`
`
`:
`
`
`
`
`
`
`:
`
`
`Opposer/Petitioner,
`
`:
`
`
`
`
`
`
`:
`
`v.
`
`
`
`
`:
`
`
`
`
`
`
`:
`ROCKSTAR INDUSTRIES LLC, and
`:
`ROCKSTAR LLC,
`
`
`
`:
`
`
`
`
`
`
`:
`
`
`Applicants/Respondents
`:
`
`
`
`
`
`
`:
`
`Opposition No. 91247241 (Parent)
`Cancellation No. 92075918
`Cancellation No. 92076204
`
`____________________________________x
`
`DECLARATION OF SARAH BUTLER
`
`
`I, Sarah Butler, declare and testify as follows:
`
`1.
`
`I have been retained as an expert witness on behalf of PepsiCo, Inc. ("PepsiCo")
`
`in the above-captioned consolidated proceedings. I submit this Testimonial Declaration
`
`and the exhibits attached hereto, which are incorporated herein by reference, for the
`
`

`

`purpose of identifying documentary material being submitted by PepsiCo in support of
`
`PepsiCo's claims against Applicants/Respondents, Rockstar Industries LLC and
`
`Rockstar LLC, and providing testimony and information relating to a consumer study
`
`showing, among other things, a substantial likelihood of confusion between the marks
`
`at issue amongst relevant consumers, that is, 46.2 percent overall confusion.
`
`BACKGROUND, EXPERIECE & EXPERTISE
`
`2.
`
`I am Senior Managing Director at NERA Economic Consulting, Inc. NERA
`
`Economic Consulting (www.nera.com) a global firm of experts dedicated to applying
`
`economic, finance, and quantitative principles to complex business and legal
`
`challenges. For more than six decades, NERA has been creating strategies, studies,
`
`reports, expert testimony, and policy recommendations for government authorities and
`
`the world’s leading law firms and corporations. NERA brings academic rigor,
`
`objectivity, and real-world industry experience to issues arising from competition,
`
`regulation, public policy, strategy, finance, and litigation. NERA provides expert
`
`statistical, survey, economic, and financial research analysis.
`
`3.
`
`At NERA, I serve as the Chair of the Survey and Statistical Sampling Practice
`
`and am a member of the Intellectual Property, Product Liability, Antitrust, and Labor
`
`Practices. My business address is 4 Embarcadero Center, San Francisco, CA 94111.
`
`NERA is a firm providing expert statistical, survey, economic, and financial research
`
`analysis.
`
`4.
`
`Among my responsibilities, I conduct survey research and market research and
`
`design and implement statistical samples for matters involving business and consumer
`
`decision- making, consumer choice, and consumer behavior. In the course of my career,
`
`

`

`I have conducted research for leading corporations and government agencies on
`
`consumers, employees, and businesses. My work has been included in numerous
`
`lawsuits involving issues related to trademark and trade dress confusion, secondary
`
`meaning, false advertising, and patent infringement, as well as in antitrust and
`
`employment-related litigations. I am a member of the American Association of Public
`
`Opinion Research, the American Statistical Association, the Intellectual Property
`
`Section of the American Bar Association, and the International Trademark Association
`
`(INTA).
`
`5.
`
`I have also worked as a market researcher conducting surveys of consumers and
`
`professionals, focus groups, and in-depth interviews. I worked as an independent
`
`consultant conducting research for the Department of Environment and Rural Affairs in
`
`the United Kingdom. I have taught courses focused on or involving research
`
`methodologies in both the United States and Europe. I hold a Master’s Degree from
`
`Trinity College, Dublin and another Master’s Degree from Temple University.
`
`6.
`
`I have substantial experience conducting and using surveys to measure the
`
`recognition, confusion and associations with a trademark, opinions and behaviors
`
`regarding products and services including purchase processes, product attributes,
`
`consumer perception and preferences, branding and positioning, new product research,
`
`and communications strategies. During my career in academic and commercial
`
`research, I have personally facilitated a wide range of research including large-scale
`
`surveys, in-depth interviews, focus groups, and observational studies.
`
`7.
`
`Throughout my career, I have personally designed, supervised and implemented
`
`over 300 surveys regarding the perceptions and opinions of consumers. Over 100 of
`
`

`

`such surveys involved consumer perception of trademarks and over 100 have been
`
`conducted online.
`
`8.
`
`I have submitted expert reports, been deposed, and have testified at trial within
`
`the last five years in United States District Courts across the country and before the
`
`Trademark Trial and Appeal Board. In addition, studies which I have undertaken have
`
`been admitted as evidence in numerous legal proceedings, and I have been accepted as
`
`an expert in survey research on many occasions by U.S. Federal District court, the
`
`Trademark Trial & Appeal Board of the United States Patent & Trademark Office, the
`
`Federal Trade Commission, and the National Advertising Division of the Council of
`
`Better Business Bureaus.
`
`CONSUMER SURVEY ASSIGNMENT
`
`9.
`
`Pursuant to a request from Baker Botts L.L.P., counsel for PepsiCo, I
`
`independently designed and conducted an online survey of relevant consumers to
`
`evaluate the extent to which Applicant's claimed mark ROCKSTAR in connection with
`
`meal replacement products, energy bars, and/or dietary and nutritional supplements is
`
`likely to cause confusion with PepsiCo's mark ROCKSTAR.
`
`10.
`
`In its opposition and cancellation actions, PepsiCo has claimed that consumers
`
`are likely to be confused, mistaken or deceived by and/or wrongly affiliate, connect or
`
`associate Applicant’s “ROCKSTAR” mark with PepsiCo’s “ROCKSTAR” brand,
`
`including when used by Applicant in conjunction with meal replacement products,
`
`energy bars, and/or dietary and nutritional supplements identified in Applicant’s
`
`registrations and applications.
`
`11.
`
`I understand that PepsiCo is the only entity offering energy drinks under the
`
`

`

`mark “ROCKSTAR” in the United States.
`
`12. My qualifications, analysis and conclusions are set forth in my report dated
`
`March 4, 2022, a true and correct copy of which is attached hereto and incorporated
`
`herein as Exhibit 1, along with my resume that lists my testimony which is attached as
`
`Exhibit A to my expert report. I personally created this report promptly at the
`
`conclusion of the survey. I make and keep such reports in the ordinary course of my
`
`business, and my office serves as the custodian for them.
`
`SUMMARY OF RESULTS, CONCLUSIONS & OPINIONS BASED ON THE
`SURVEY OF RELEVANT CONSUMERS
`
`13.
`
`To evaluate the likelihood of confusion between Applicant’s and Opposer’s
`
`marks, I was asked by PepsiCo’s counsel Baker Botts L.L.P. to undertake a survey of
`
`relevant consumers. My survey of 420 consumers establishes that individuals who have
`
`purchased or would be likely to purchase meal replacement products, energy bars,
`
`and/or dietary and nutritional supplements believe that Applicant’s applied-for
`
`“ROCKSTAR” mark, when used on or in connection with pertinent goods, including
`
`goods identified in the applications and registrations at issue 1 are likely to cause
`
`confusion, including as to an association, connection or affiliation with PepsiCo’s
`
`ROCKSTAR brand or products.
`
`14.
`
`Respondents to my survey were randomly assigned to the Test Group or the
`
`Control Group. In both groups, respondents were asked to review “a name that could be
`
`used for meal replacement products (e.g., bars or shakes for weight loss or medical
`
`purposes), energy bars, and/or dietary and nutritional supplements.” Test Group
`
`
`1 Class 5 includes meal replacement bars for weight loss purposes; chocolate-based meal replacement bars for
`medical purposes; fruit-based meal replacement bars for medical purposes; nutritional supplement energy bars
`(Rockstar Industry LLC’s Application 87374601); nutritional supplement meal replacement bars for boosting
`energy. Class 29 includes dietary and nutritional supplements (Rockstar Industry LLC’s Application 87850627).
`
`

`

`respondents were shown the name “ROCKSTAR.” I counted the number of unique
`
`respondents who believed that meal replacement products, energy bars, and/or dietary
`
`and nutritional
`
`supplements with
`
`the name ROCKSTAR were products
`
`associated/affiliated with PepsiCo, ROCKSTAR energy drinks, and/or energy drinks
`
`generally. A total of 46.7 percent of respondents identified ROCKSTAR energy drinks,
`
`or energy drinks generally, as associated and/or affiliated with the name shown.
`
`15.
`
`To account for any possible guessing or other sources of survey noise, my
`
`survey included a Control Group. Respondents in the Control Group were shown the
`
`name “POP ICON” and were asked the same series of questions as asked in the Test
`
`Group. Across all survey questions, only one respondent in the Control Group indicated
`
`that “POP ICON” is associated and/or affiliated with ROCKSTAR energy drinks when
`
`asked to think about meal replacement products, energy bars, and/or dietary and
`
`nutritional supplements. None of the respondents in the Control named PepsiCo or
`
`energy drinks in general.
`
`16.
`
`Using the Control Group responses to net out any possible guessing or survey
`
`“noise,” I estimate a net total of 46.2 percent2 of relevant consumers who, when asked
`
`to think of products such as meal replacement products, energy bars, and/or dietary and
`
`nutritional supplements, identify, associate or affiliate “ROCKSTAR” with PepsiCo’s
`
`ROCKSTAR brand or products.
`
`17.
`
`These results indicate that consumers in the market for the types of goods
`
`offered by the Applicant in, at least, Class 5 and 29 would identify, associate or affiliate
`
`“ROCKSTAR” with PepsiCo, its ROCKSTAR mark and products.
`
`2 This estimate of 46.2 percent includes respondents who had previously completed surveys on, or worked in
`industries related to, the goods and services at issue (See paragraph 23, (e) and (f)). When I remove respondents in
`these categories, the net proportion of association increases to 50.0 percent. This is discussed further in ¶ 49, below.
`
`

`

`18. My survey generally conforms with the Eveready format, a survey design that is
`
`typically used to test likelihood of confusion. As discussed, my results demonstrated a
`
`very high rate of association or affiliation with PepsiCo and its ROCKSTAR mark and
`
`products – 46.2 percent.
`
`19.
`
`The survey format and high proportion of association or affiliation together
`
`demonstrate that PepsiCo’s “ROCKSTAR” mark is commercially very strong, even
`
`when being tested beyond energy drinks and within the context of meal replacement
`
`products, energy bars, and/or dietary and nutritional supplements.
`
`20.
`
`In the remainder of this report, I describe my understanding of the background
`
`in this matter, the research I designed and conducted, and provide a detailed discussion
`
`of the survey results.
`
`SURVEY METHODOLOGY
`
`21.
`
`The design of my research follows the generally accepted principles for the
`
`design of surveys to be used as evidence in litigation. 3 In general, the design of a
`
`reliable survey requires careful attention to the following key areas:
`
`a. The definition of the relevant population;
`
`b. The procedures for sampling from the relevant population;
`
`c. The survey questions used;
`
`d. The stimuli shown to respondents; and
`
`e. The protocol for calculating the results from the survey.4
`
`
`3 Diamond, S. S. (2011). “Reference Guide on Survey Research,” Reference Manual on Scientific Evidence, Committee on the
`Development of the Third Edition of the Reference Manual on Scientific Evidence; Federal Judicial Center; National Research
`Council (hereinafter, “Diamond”), pp. 359-423.
`
`4 The Federal Judicial Center’s (2004) Manual for Complex Litigation, Fourth Edition, §11.493, p. 103 phrases
`these key areas as such:
`• the population was properly chosen and defined;
`
`

`

`22.
`
`The discussion of the survey I conducted is organized around each of the
`
`following key areas.
`
`Survey Population
`
`23.
`
`The population for my survey was United States residents age 18 years old or
`
`older who either have purchased, or are likely to purchase one or more of the following:
`
`meal replacement products for weight loss (e.g., bars, shakes, or powders), meal
`
`replacement products for medical purposes (e.g., bars, shakes, or powders), dietary and
`
`nutritional supplements (e.g., vitamins, protein powder, pre-workout), and/or energy
`
`bars (e.g., bars containing ingredients like cereals, grains, and/ or nuts for energy or a
`
`meal on the go). These goods are specifically referenced in Applicant’s applications and
`
`registrations for the “ROCKSTAR” mark in reference to goods and services in Classes
`
`5 and 29. The sample was click-balanced, meaning that invitations to the survey were
`
`sent out in proportion to the demographics of the population of the United States.
`
`Qualifying respondents also therefore reflect their distribution in the population.
`
`Sampling of the Relevant Population
`
`24.
`
`Potential survey respondents were contacted by Veridata Insights (“Veridata”),
`
`an online panel and data collection services company.5 Veridata is an independent data
`
`collection company that I have prior experience working with, and that is not associated
`
`with NERA in any way. Veridata uses a variety of quality control measures to ensure
`
`the reliability and integrity of the respondents and the responses they provide. Veridata
`
`complies with the standards and ethics for online survey data panels set forth by the
`
`• 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.
`5 Additional information about Veridata Insights is available on their website at https://www.veridatainsights.com,
`last accessed March 3, 2022.
`
`
`
`

`

`Insights Association.6,7 Veridata’s standard quality control measures were applied in
`
`this study.
`
`25.
`
`A total of 420 respondents qualified for and completed the survey. The survey
`
`invitation is provided in Exhibit C, the complete questionnaire is provided in Exhibit
`
`D, and screenshots of the survey as it appeared to respondents are provided in Exhibit
`
`E.
`
`26.
`
`2022.
`
`Data for the survey were collected between February 18, 2022 and February 23,
`
`Quality Control Measures for the Survey
`
`27.
`
`To ensure that my data are of the highest quality, I implemented quality control
`
`measures in addition to those undertaken by Veridata:
`
`28.
`
`As is standard survey practice for litigation, the survey was conducted in a
`
`“double-blind” fashion; that is, neither the staff at Veridata nor any of the respondents
`
`were aware of the survey sponsor or the ultimate intention of the survey.8
`
`29.
`
`Respondents were able to take the survey on a desktop, laptop, or tablet
`
`computer, or on their mobile phone or cell phone.
`
`30.
`
`Respondents had to correctly answer a Google reCAPTCHA question to ensure
`
`that a person, and not a computer or “bot,” was taking the survey.9
`
`31.
`
`Respondents were also required to enter their state of residence and zip code,
`
`
`6 The Insights Association is an organization representing the industry and profession of market research and
`analytics (https://www.insightsassociation.org/about, last accessed February 2, 2022).
`7 The Insights Association puts out the Code of Standards and Ethics for Marketing Research and Data Analytics
`available at https://www.insightsassociation.org/sites/default/files/misc_files/ia_codeofstandardsethics4.2019.pdf,
`last accessed February 2, 2022.
`8 Diamond, pp. 410-411.
`9 “reCAPTCHA uses an advanced risk analysis engine and adaptive challenges to keep malicious software from
`engaging in abusive activities.” https://www.google.com/recaptcha/intro/v3.html, last accessed March 3, 2022.
`
`

`

`and if these data conflicted with one another, the respondent was excluded.
`
`32.
`
`Additionally, respondents who had previously completed a survey about meal
`
`replacement products, energy drinks, dietary and nutritional supplements, or energy
`
`bars in the past six months, or who indicated that they did not know or were unsure,
`
`were flagged in the analysis.
`
`33.
`
`Respondents were also flagged if they indicated that that they or someone in
`
`their household worked for a market research or advertising company; a company that
`
`makes or manufactures meal replacement products, energy drinks, dietary or nutritional
`
`supplements, or energy bars; or answered that they did not know or were unsure.
`
`34.
`
`I compared the results with and without the respondents flagged in (e) and (f)
`
`above. As my conclusions do not change when these respondents are removed, I have
`
`left them in the analysis. A set of tables without these respondents is included as
`
`Exhibit F.
`
`35.
`
`The survey program was tested, and the initial results were reviewed to ensure
`
`that there were no errors in the programming, respondents were able to view the stimuli,
`
`and that respondents were able to understand and answer the questions as asked.
`
`Questionnaire
`
`36.
`
`To ensure that respondents were part of the relevant population, a series of
`
`screening questions was asked.10 First, potential respondents were asked their age and
`
`gender. Respondents who provided an age below 18 or selected “Prefer not to answer”
`
`were screened out.
`
`37.
`
`Next, respondents were asked to identify their state and zip code. If the zip code
`
`
`10 The questionnaire can be found in Exhibit D and screenshots of the survey as it appeared to respondents can be
`found in Exhibit E.
`
`

`

`provided did not match their state of residence, the respondent was screened out.
`
`Respondents who indicated that they reside outside of the United States were also
`
`screened out.
`
`38.
`
`Following these questions, respondents were asked to select from a list of items,
`
`which, if any, they had purchased in the past three months. The list, which was
`
`randomized, included: meal replacement products for weight loss (e.g., bars, shakes, or
`
`powders), meal replacement products for medical purposes (e.g., bars, shakes, or
`
`powders), alcoholic beverages (e.g., beer, wine, or spirits), juice (e.g., apple, grape, or
`
`orange), dietary and nutritional supplements (e.g., vitamins, protein powder, pre-
`
`workout), energy bars (e.g., bars containing ingredients like cereals, grains, and/ or nuts
`
`for energy or a meal on the go), and dairy products (e.g., milk, yogurt, cheese). This list
`
`also included an option for “None of these” and “Don’t know / unsure.” Respondents
`
`were then provided the same list of items and asked to indicate if they were likely to
`
`purchase any of these items in the next three months. Again, this list included options
`
`for “None of these” and “Don’t know / unsure.”
`
`39.
`
`To qualify, respondents had to indicate that they have purchased, or were likely
`
`to purchase, meal replacement products for weight loss (e.g., bars, shakes, or powders),
`
`meal replacement products for medical purposes (e.g., bars, shakes, or powders), dietary
`
`and nutritional supplements (e.g., vitamins, protein powder, pre-workout), and/or
`
`energy bars (e.g., bars containing ingredients like cereals, grains, and/ or nuts for energy
`
`or a meal on the go).
`
`40.
`
`After this series of screening questions, qualified respondents began the main
`
`portion of the questionnaire where they were then randomized into either the Test
`
`

`

`Group or the Control Group.
`
`41.
`
`Respondents in the Test Group were shown the name “ROCKSTAR.” The
`
`survey I conducted also included a Control Group. My survey was designed to measure
`
`whether consumers associate “ROCKSTAR” with a particular company, brand, or set of
`
`products when thinking about meal replacement products, energy bars, and/or dietary
`
`and nutritional supplements. Such measurements may inadvertently include guessing or
`
`responses resulting from some aspect of the research that is unrelated to the word being
`
`tested. These responses are sometimes referred to as survey “noise,” which should be
`
`eliminated from the final calculation of confusion. To measure the extent to which these
`
`responses are affecting the key estimate(s), survey researchers generally also measure
`
`the perceptions of respondents using a Control stimulus with a separate, randomly
`
`assigned group of individuals.11 In this case, respondents in my Control Group were
`
`shown a different name, “POP ICON.” The word “POP ICON” is an appropriate control
`
`as it connotes a similar meaning to “ROCKSTAR” and contains a similar number of
`
`letters.
`
`SURVEY RESULTS12
`
`Respondent Characteristics
`
`42.
`
`As shown in Table 1 of my report (Exhibit 1), my survey included a total of
`
`420 qualified respondents. The survey respondents included men and women residing
`
`in the U.S. across a mix of age ranges. As noted, my sample was click-balanced to
`
`ensure that my sample was generally representative of consumers of the targeted classes
`
`
`11 Diamond, pp. 397-401. More specifically, Diamond writes that “[c]ontrol groups and, as a second choice, control questions are
`the most reliable means for assessing response levels against the baseline level of error associated with a particular question,”
`p. 401.
`12 The data for my survey are attached as Exhibit G.
`
`

`

`of goods and services sold by Applicant. Respondents were also distributed across the
`
`four regions of the United States as defined by the U.S. Census.
`
`Likelihood of Confusion Results
`
`43.
`
`After looking at the name, respondents were asked, thinking about meal
`
`replacement products, energy bars, and/or dietary and nutritional supplements, whether
`
`they associated the name with any particular brand/brands or company/companies. In
`
`the Test Group, 100 respondents, or 47.6 percent, said that they associated the name
`
`“ROCKSTAR” with some company or brand when thinking about meal replacement
`
`products, energy bars, and/or dietary and nutritional supplements. The corresponding
`
`percentage or of respondents in the Control Group who saw “POP ICON” is 11.4
`
`percent (24 respondents).
`
`44. When asked what brand(s) or company(ies) they associate with the name when
`
`thinking about meal replacement products, energy bars, and/or dietary and nutritional
`
`supplements, 14.8 percent of Test Group respondents mentioned either ROCKSTAR
`
`energy drinks or PepsiCo. In addition, when asked to think about meal replacement
`
`products, energy bars, and/or dietary and nutritional supplements, 16.7 percent of Test
`
`Group respondents identified the product category “energy drinks,” (and, as discussed
`
`above, I understand that PepsiCo is the only entity offering energy drinks under a
`
`“ROCKSTAR” mark). In the Control Group, none of the respondents identified
`
`ROCKSTAR energy drinks, PepsiCo, or energy drinks when shown the name “POP
`
`ICON.” These results are shown in Table 3 below.
`
`

`

`Table 3. Brand(s) or Company(ies) Associated with ROCKSTAR or POP ICON13
`
`
`
`Source: NERA Survey, February 2022
`
`45.
`
`I next asked respondents a series of questions about whether they associate
`
`products other than meal replacement products, energy bars, and/or dietary and
`
`nutritional supplements with the name “ROCKSTAR” (or, in the Control Group, “POP
`
`ICON”). Among Test Group respondents, a total of 40.0 percent said that they
`
`associated the name “ROCKSTAR” with some other product. The corresponding
`
`percentage in the Control Group is 14.8 percent.
`
`46.
`
`Respondents who said that they associated the name with a product or products
`
`when thinking about meal replacement products, energy bars, and/or dietary and
`
`nutritional supplements were asked to name the products. In the Test Group, seven
`
`respondents (3.3 percent) said that
`
`they associate “ROCKSTAR” with either
`
`ROCKSTAR energy drinks or PepsiCo, and 22.4 percent of Test Group respondents
`
`indicated that they associate “ROCKSTAR” with energy drinks. In the Control Group,
`
`one respondent indicated that they associate the name “POP ICON” with ROCKSTAR
`
`energy drinks. These results (in Table 4) demonstrate that a sizable portion of
`
`
`13 Percentages sum to more than 100 as respondents could name more than one brand. In addition to mentioning
`ROCKSTAR Energy Drinks, respondents mentioned other energy drink brands such as Red Bull, Monster, and
`Bang.
`
`

`

`consumers in the market for Applicant’s products associate the name “ROCKSTAR”
`
`with energy drinks.
`
`Table 4. Product(s) Associated with ROCKSTAR or POP ICON
`
`
`
`Source: NERA Survey, February 2022
`
`47.
`
`Lastly, respondents were asked, thinking about meal replacement products,
`
`energy bars, and/or dietary and nutritional supplements, whether they think the name
`
`shown is affiliated with any other brand(s) or company(ies). In the Test Group, 44
`
`respondents (21.0 percent) indicated that they believed the name is affiliated with
`
`another brand(s) or company(ies). In the Control Group, 11.9 percent of respondents
`
`believed the name is affiliated with another brand(s) or company(ies).
`
`48. When asked in an open-ended question to indicate which brand(s)/company(ies)
`
`was/were affiliated with “ROCKSTAR,” thinking about meal replacement products,
`
`energy bars, and/or dietary and nutritional supplements, 14 respondents in the Test
`
`Group, or 6.7 percent, said that either ROCKSTAR energy drinks or PepsiCo were
`
`affiliated with “ROCKSTAR” and 11 respondents in the Test Group (5.2 percent)
`
`mentioned energy drinks. In the Control Group, none of the respondents indicated that
`
`ROCKSTAR energy drinks or energy drinks were affiliated with “POP ICON.” These
`
`

`

`results are shown below in Table 5.
`
`Table 5. Brand(s) or Company(ies) Affiliated with ROCKSTAR or POP ICON
`
`
`
`Source: NERA Survey, February 2022
`
`49.
`
`To estimate overall confusion, I tally the number of unique respondents who
`
`believed meal replacement products, energy bars, and/or dietary and nutritional
`
`supplements with the name “ROCKSTAR” were associated or affiliated with PepsiCo,
`
`ROCKSTAR energy drinks, or energy drinks in any of the relevant confusion questions.
`
`Overall, there were 98 unique Test Group respondents, or 46.7 percent, who associated
`
`“ROCKSTAR” with PepsiCo, ROCKSTAR energy drinks, or energy drinks when
`
`asked to think about meal replacement products, energy bars, and/or dietary and
`
`nutritional supplements. Only one Control Group respondent associated “POP ICON”
`
`with ROCKSTAR energy drinks when asked to think about meal replacement products,
`
`energy bars, and/or dietary and nutritional supplements. None of the Control Group
`
`respondents associated “POP ICON” with PepsiCo or energy drinks generally.
`
`Therefore, a net total of 46.2 percent of respondents would be confused and associate or
`
`affiliate “ROCKSTAR” with PepsiCo’s ROCKSTAR energy drinks when asked to
`
`think about meal replacement products, energy bars, and/or dietary and nutritional
`
`supplements. These results are shown in Table 6.
`
`

`

`Table 6. Overall Association
`
`
`
`Source: NERA Survey, February 2022
`
`50.
`
`As noted above, I also calculated the overall confusion percentage separately
`
`after removing respondents in two groups: (1) respondents who had previously
`
`completed a survey about meal replacement products, energy drinks, dietary and
`
`nutritional supplements, or energy bars in the past six months, or who indicated that
`
`they did not know or were unsure, and/or (2) respondents who indicated that that they
`
`or someone in their household worked for a market research or advertising company; a
`
`company that makes or manufactures meal replacement products, energy drinks, dietary
`
`or nutritional supplements, or energy bars; or answered that they did not know or were
`
`unsure. I removed 85 respondents for these reasons, leaving a total of 335 respondents
`
`in the resulting analysis. My conclusions do not change when I remove this group. The
`
`overall net rate of confusion for this group of respondents is 50.0 percent.14
`
`51.
`
`These results demonstrate that when asked to think about products in Class 5
`
`and Class 29 (i.e., meal replacement products, energy bars, and/or dietary and
`
`nutritional supplements) consumers of
`
`these products associate or affiliate
`
`“ROCKSTAR” with PepsiCo’s ROCKSTAR energy drinks. Even with a Control
`
`Group, almost half of relevant consumers surveyed indicated that “ROCKSTAR” meal
`
`14 A full set of tables presenting the results for this subset of respondents are included as Exhibit F.
`
`

`

`replacement products, energy bars, and/or dietary and nutritional supplements are
`
`confused as to association or affiliation with PepsiCo’s ROCKSTAR energy drinks.
`
`This is a substantial degree of confusion.
`
`52.
`
`Finally, I included a question in my survey to evaluate the extent to which
`
`purchasers of products in Class 5 and 29 also purchase energy drinks. As shown in
`
`Table 7, a total of 70.7 respondents who purchase or are likely to purchase meal
`
`replacement products, energy bars, and/or dietary and nutritional supplements also
`
`purchase energy drinks. Accordingly, respondents who purchase meal replacement
`
`products, energy bars, and dietary and/or nutritional supplements frequently also
`
`purchase energy drinks. A total of 172 respondents, or 41.0 percent, indicated that they
`
`purchase meal replacement products, energy bars, and dietary and/or nutritional
`
`supplements once a month or more often, and also purchase energy drinks with the
`
`same frequency.
`
`Table 7. Respondents’ Frequency of Energy Drink Purchases
`
`Response
`1 Once a month or more often
`Once every two to three months
`Once every four to six months
`Once every seven to eleven months
`Once a year or less often
`
`Energy drink purchasers
`
`Do not purchase
`
`2 Don't know
`Total Respondents
`
`Count
`190
`51
`21
`15
`20
`
`297
`
`120
`
`3
`420
`
`Percent
`45.2%
`12.1%
`5.0%
`3.6%
`4.8%
`
`70.7%
`
`28.6%
`
`0.7%
`100%
`
`Q9. How often, if at all, do you purchase any of the following
`products?
`
`
`
`Source: NERA Survey, February 2022
`
`

`

`FINDINGS, CONCLUSIONS & OPINIONS
`
`53. My survey of 420 respondents was designed to determine the extent to which
`
`consumers, when asked to think about meal replacement products, energy bars, and/or
`
`dietary and nutritional supplements, identify, associate or affiliate “ROCKSTAR” with
`
`PepsiCo or its ROCKSTAR energy drinks.
`
`54.
`
`Overall, a net of 46.2 percent of respondents when asked to think about meal
`
`replacement products, energy bars, and/or dietary and nutritional supplements identify
`
`the “ROCKSTAR” name as being associated, connected or affiliated with PepsiCo,
`
`ROCKSTAR energy drinks, or energy drinks, and/or associate or affiliate Applicant’s
`
`products with PepsiCo’s ROCKSTAR products. These results indicate that a substantial
`
`number of consumers in the market for Applicant’s products, including, meal
`
`replacement products, energy bars, and/or dietary and nutritional