Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1238258
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`Filing date:
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`09/27/2022
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`91252714
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`Party
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`Correspondence
`address
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`Submission
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`Filer's name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`Defendant
`Rogue Ridge, LLC
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`ANTOINETTE M TEASE
`ANTOINETTE M TEASE PLLC
`P O BOX 51016
`BILLINGS, MT 59105
`UNITED STATES
`Primary email: toni@teaselaw.com
`406-294-9000
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`Testimony For Defendant
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`Antoinette M. Tease
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`toni@teaselaw.com
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`/Antoinette M. Tease/
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`09/27/2022
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`Submission of Expert Testimony Declaration of Brian Sowers PUBLIC - R
`EBUTTAL REPORT 09-24-22.pdf(106026 bytes )
`Sowers Supplemental Declaration 06-28-21.pdf(359972 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`COULTER VENTURES, LLC,
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`Opposer/Petitioner,
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`v.
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`ROGUE RIDGE, LLC,
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`Applicant/Registrant.
`____________________________________)
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`Opposition No. 91252714
`(parent case)
`Cancellation No. 92074531
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`Mark: R ROGUE RIDGE
`Serial No.: 87562770
`Mark: RODGUE RIDGE
`Serial No.: 87562718
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`APPLICANT/REGISTRANT ROGUE RIDGE, LLC’S
`SUBMISSION OF EXPERT TESTIMONY DECLARATION
`OF BRIAN M. SOWERS
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`Applicant/Registrant Rogue Ridge, LLC hereby gives notice of filing with the
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`Trademark Trial and Appeal Board the Expert Testimony Declaration of Brian M.
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`Sowers. Pursuant to the Board’s October 18, 2021 order, consideration of Opposer’s
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`contested motion to strike this declaration is deferred until final decision.
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`Dated: September 27, 2022
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`Respectfully submitted,
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`/Antoinette M. Tease/
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`Antoinette M. Tease
`ANTOINETTE M. TEASE, P.L.L.C.
`Attorney for Applicant/Registrant
`PO Box 1902
`Billings, MT 59103
`(406) 294-9000
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing ROGUE RIDGE,
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`LLC’S SUBMISSION OF EXPERT TESTIMONY DECLARATION OF BRIAN M.
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`SOWERS is being served on September 27, 2022, by email to Louis DiSanto, attorney
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`for Opposer/Petitioner, at ldisanto@bannerwitcoff.com,
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`with a copy to:
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`aking@bannerwitcoff.com
`emaurer@bannerwitcoff.com
`lbrodzinski@bannerwitcoff.com
`kfink@bannerwitcoff.com
`jwebb@bannerwitcoff.com
`bwlitdocket@bannerwitcoff.com
`bwptotm@bannerwitcoff.com
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`/Antoinette M. Tease/
`Antoinette M. Tease
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`2
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`______________________________________
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`COULTER VENTURES, LLC,
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` Opposer,
`) Opposition No. 91252714 (Parent Case)
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`) Cancellation No. 92074531
`vs.
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`ROGUE RIDGE, LLC,
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` Applicant.
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`______________________________________ )
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`SUPPLEMENTAL DECLARATION OF BRIAN M. SOWERS TO THE EXPERT
`REPORT OF DR. BRUCE ISAACSON
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`Brian M. Sowers
`Applied Marketing Science, Inc.
`303 Wyman St.
`Waltham, Massachusetts 02451
`(781) 250-6313
`bsowers@ams-inc.com  www.ams-inc.com
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`I, Brian M. Sowers, hereby AFFIRM THAT:
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`INTRODUCTION
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`1.
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`As detailed in my Expert Declaration dated April 2, 2021, I am a Principal at Applied
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`Marketing Science, Inc. (“AMS”), a market research and consulting firm. I have been at
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`AMS since 2011, and I have worked in the field of market research since 1996. Prior to
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`joining AMS, I held market research positions at the Forbes Consulting Group (2003-
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`2011), Lockheed Martin (2002-2003), MCI WorldCom (1999-2002), and Marketing
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`Analysts, Inc. (1996-1999).
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`2.
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`I submitted my Expert Declaration on April 2, 2021, where I explained that I designed
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`and conducted a survey to test whether Rogue Ridge’s use of the ROGUE RIDGE mark
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`is likely to cause confusion with Coulter Ventures and/or Coulter Ventures’ Marks.
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`Further, I concluded that, based on the results of the survey that I designed and
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`conducted, it is my professional opinion that relevant consumers are not likely to be
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`confused by Rogue Ridge’s use of the ROGUE RIDGE mark in connection with electric
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`mountain bikes. Specifically, 6.1% of Test Group respondents indicated that they
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`believed the goods and services offered under the ROGUE RIDGE mark originate from,
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`are connected to or affiliated with, or are offered with the permission or approval of,
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`Coulter Ventures. After controlling for guessing and other forms of survey noise, the net
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`confusion rate is 5.6%.
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`3.
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`On June 15, 2021, Dr. Bruce Isaacson submitted an Expert Report (the “Isaacson
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`Report”). Dr. Isaacson was asked by counsel representing Coulter Ventures to review and
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`evaluate my Expert Declaration dated April 2, 2021.
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`1
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`4.
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`In this report, I will respond to the Isaacson Report. In undertaking this assignment, I
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`relied on generally accepted principles of market research, as well as my extensive
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`expertise in survey development and the interpretation of qualitative and quantitative
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`data. My omission of any specific element of the Isaacson Report, if any, should not be
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`interpreted as agreement or consent.
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`5.
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`The work I performed for this investigation was as an employee of AMS. My rate of
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`compensation for this assignment is $550 per hour. My compensation is not contingent
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`upon the outcome of this case. I reserve the right to update and revise my opinions and
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`conclusions should any additional data or information become available to me.
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`SUMMARY OF DR. ISAACSON’S CRITIQUES
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`6.
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`Dr. Isaacson’s criticisms of my survey can be summarized as follows: (1) I do not show
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`that Eveready is a valid format to measure likelihood of confusion in this matter1; (2) my
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`report undercounts confusion by improperly assuming that responses that mention
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`“Rogue” or “Rogue Ridge” are not confused2; (3) my survey is leading because it uses
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`the phrase “brand name” as many as 19 times3; and (4) my survey provides measures
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`limited to purchasers of electric mountain bikes and the plain text mark.4 In the sections
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`that follow, I will respond to Dr. Isaacson’s specific criticisms of my survey and explain
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`why his criticisms are misplaced and flawed.
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`1 Expert Rebuttal Report of Dr. Bruce Isaacson, ¶ 18(i).
`2 Id., ¶ 18(ii).
`3 Id., ¶ 18(iii).
`4 Id., ¶ 18(iv).
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`(1) Response to the Opinion that Eveready is Not A Valid Format for Testing Likelihood of
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`Confusion in this Matter
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`7. As stated in my report, “the Eveready format is an appropriate design to measure consumer
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`confusion when the senior mark is strong and widely recognized and/or [emphasis added]
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`the products at issue are not directly competing with one another or substantially
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`overlapping in the marketplace.”5 Dr. Isaacson claims that use of the Eveready format in
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`this matter was inappropriate because I, “fail to address the marketplace overlap between
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`the mountain bikes that the Applicant sells and the stationary bikes that the Opposer sells.”6
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`However, this criticism is flawed and incorrect for a number of reasons.
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`8.
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`First, the marks at issue in the present matter belong to companies that engage in
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`completely different businesses. It is my understanding that Rogue Ridge sells electric
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`mountain bikes, while Coulter Venture sells apparel, weightlifting equipment, stationary
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`bicycles, and personal training services.7 Thus, there is little to no likelihood that potential
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`purchasers of electric mountain bikes would come across both of the marks at issue in
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`either physical or temporal proximity. Stated another way, it is very unlikely that
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`consumers who are in the market for an electric mountain bike would see the mark of an
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`electric mountain bike company and then a mark for a company that sells apparel,
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`weightlifting equipment, stationary bicycles, or personal training services.
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`9.
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`In his report, Dr. Isaacson lists several models of stationary bikes sold by Opposer.8 It is
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`important to note that the Opposer’s stationary bikes listed by Dr. Isaacson are all non-
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`interactive stationary bikes that do not allow for connecting remotely to online classes or
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`5 Expert Declaration of Brian Sowers, ¶ 25.
`6 Expert Rebuttal Report of Dr. Bruce Isaacson, ¶ 47.
`7 Expert Declaration of Brian Sowers, ¶ 6.
`8 Expert Rebuttal Report of Dr. Bruce Isaacson, ¶ 42.
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`trainings.9 However, the secondary research that Dr. Isaacson cites to in his report, as
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`support for the claim that the products at issue overlap in the marketplace, does not
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`differentiate between non-interactive stationary bikes which Opposer sells and interactive
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`stationary bikes (i.e., stationary bikes such as those put out by Peloton where users can
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`connect remotely to online classes and trainings) which I understand Opposer does not sell.
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`10. Additionally, the research to which Dr. Isaacson cites is from the perspective of stationary
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`bike owners. He does not provide any information on whether an electric mountain bike
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`purchaser (which is the relevant universe in this matter) would also be in the market for any
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`type of stationary bike. Further, Dr. Isaacson’s claim that there is overlap in the
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`marketplace simply because the website www.bicycling.com has links to different bike
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`type articles on the same page is unpersuasive. It is not surprising that such a site would
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`write about different types of bikes since it is the industry that it covers. Not surprisingly,
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`Dr. Isaacson does not provide any evidence that a reader on that site would 1) be a potential
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`purchaser of an electric mountain bike or 2) click on and read more than one article where
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`they might be exposed to an electric mountain bike and also a stationary bike. Thus, the
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`secondary research that Dr. Isaacson relies upon cannot demonstrate the degree of market
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`overlap between the electric mountain bikes that Applicant sells and the non-interactive
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`stationary bikes that Opposer sells.
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`11. Dr. Isaacson is incorrect when he claims that my survey does address the amount of
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`overlap in the marketplace. Q11 in my survey asked respondents which, if any, types of
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`bikes they are likely to personally purchase in the next 12 months. The data show that
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`9 https://www.roguefitness.com/rogue-echo-bike; https://www.roguefitness.com/concept2-bike-erg;
`https://www.roguefitness.com/schwinn-airdyne-pro; https://www.roguefitness.com/assault-airbike-and-accessories;
`https://www.roguefitness.com/assault-airbike-elite-and-accessories (accessed June 24, 2021).
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`77.6% of respondents in my survey are not likely to purchase “a non-interactive stationary
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`bike” in the next 12 months. That is, the overwhelming majority of individuals in my
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`survey who are likely to purchase an electric mountain bike in the next 12 months are not
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`likely to purchase the types of non-interactive stationary bikes offered by Opposer. Thus, it
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`would have been inappropriate in designing my survey to use a methodology that assumes
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`proximity, specifically that everyone who is in the market for an electric mountain bike
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`would also be in the market for a non-interactive stationary bike.
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`12. Dr. Isaacson does not indicate which type of survey he believes would have been
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`appropriate. Presumably, he means that I should have conducted a Squirt survey, since the
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`Eveready and Squirt formats are the two most commonly used survey methods for testing
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`likelihood of confusion.10 However, it would have been inappropriate to use the Squirt
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`format in this particular matter. In the Squirt format, respondents are first exposed to the
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`senior user’s mark as they would encounter it in the marketplace. Later, they are shown
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`other marks that would be found in the marketplace within proximity of the senior user’s
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`mark. The other marks are shown in a similar manner, one at a time. After each mark is
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`shown, respondents are asked a series of questions to determine their beliefs about the
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`presence or absence of a relationship between the mark shown and the first mark they saw.
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`This format is an appropriate design to measure consumer confusion between goods and
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`services that are “available or advertised in reasonable proximity in the marketplace.”11
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`However, as stated previously, my survey data demonstrate that there would not be a
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`significant number of real world situations in which both marks would be evaluated
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`sequentially or side-by-side, as relevant consumers who are likely to purchase an electric
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`10 McCarthy on Trademarks and Unfair Competition § 32:173 (5th ed.)
`11 McCarthy on Trademarks and Unfair Competition § 32:174 (5th ed.)
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`mountain bike are not likely to purchase the types of non-interactive stationary bikes
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`offered by Opposer. Absent market proximity between the two marks, only the Eveready
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`format survey reflects market realities. Indeed, where the two marks at issue are not
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`proximate, a similarity assessment as replicated using the Squirt format is artificial as it
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`would not occur in the actual marketplace.12 Thus, an Eveready survey is appropriate here,
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`and the showing of no confusion between the two marks reflects the reality in the actual
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`marketplace.
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`(2) Response to the Opinion that My Analysis Undercounts Confusion by Improperly
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`Assuming That Responses That Mention “Rogue” or “Rogue Ridge” are not Confused
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`13. Dr. Isaacson claims that my approach to coding respondents as confused, “excludes many
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`responses that may refer to the Opposer in this matter.”13 In Table 2 of his report, Dr.
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`Isaacson identifies 44 respondents from my survey that he believes should have been
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`counted as confused.14 However, Dr. Isaacson’s criticism and the underlying analysis on
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`which it is based is flawed and inaccurate.
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`14. First, 2 of the 44 respondents are Control Group respondents.15 It is conservative not to
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`count these respondents as confused because it would only serve to decrease the overall net
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`confusion. That is, when the control percentages increase (by counting those 2 respondents
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`as confused) and are then subtracted from the results of the test condition, the difference
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`between the test and control conditions (i.e., the “net measurement”) will be smaller. Thus,
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`12 Diamond, S.S. & Swann, J.B. (2012). Trademark and Deceptive Advertising Surveys: Law, Science, and Design.
`American Bar Association, Section of Intellectual Property Law, p.68.
`13 Expert Rebuttal Report of Dr. Bruce Isaacson, ¶ 53.
`14 Id., ¶ 62.
`15 Respondent ID# 3031, ID# 5721.
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`it provides a more conservative estimate of confusion not to count those 2 Control Group
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`respondents as confused.
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`15. For the remaining 42 respondents, what is noticeably absent from Dr. Isaacson’s analysis
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`are the open-ended responses across all questions for those individuals. For example, 29 of
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`the 44 respondents that Dr. Isaacson’s argues should be counted as confused because they
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`mentioned “Rogue Ridge” demonstrated in subsequent open-ended answers that they were
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`simply mimicking back the Applicant’s name shown in the survey. Indeed, there was
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`nothing in any of these open-ended responses to suggest that the individual was thinking
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`about Coulter Ventures or any of their goods or services instead. Thus, there is no basis to
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`count these respondents as confused. A sampling of these respondents are shown below in
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`Table 1.
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`Table 1
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`ID
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`(Q1) Who or what company do you believe puts
`out electric mountain bikes with this brand name? (Q2) Why do you say that?
`373 Rogue Ridge
`That's the name given
`1502 Rogue Ridge
`It is in the logo
`1683 Rogue Ridge
`That's the only name I see
`1746 Rogue Ridge
`I see the logo
`2668 Rogue Ridge
`Because it says Rogue Ridge
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`16. Further, 4 of the 44 respondents who mentioned “Rogue” or “Go Rogue” indicated in
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`subsequent open-ended answers that they were familiar with Rogue Ridge as an electric
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`mountain bike manufacturer or mentioned specific Rogue Ridge electric mountain bike
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`models that they own. Additionally, another 3 of the 44 respondents identified by Dr.
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`Isaacson believed that Rogue Ridge is a model of automobile, as there are car
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`manufacturers that sell models which have rogue or ridge as part of the model name. There
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`was nothing in any of these responses to suggest that respondents were thinking about
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`Coulter Ventures or any of their goods and services. Finally, 2 of the 44 respondents
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`believed that Rogue Ridge is a model of bike put out by a bike company such as Raleigh or
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`Trek. However, neither of these respondents mention Coulter Ventures or any of their
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`goods and services in any subsequent open-ended answers. Thus, none of these respondents
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`should have been counted as confused.
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`17.
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`Indeed, of the 44 respondents identified by Dr. Isaacson there are, at best, only 4 Test
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`Group respondents that could potentially be counted as confused that were not included in
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`my original analysis. Specifically, the following respondents could be counted as confused:
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`ID#168, ID#2358, ID#5685, and ID#6272. Rerunning the likelihood of confusion analysis
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`to include these 4 additional Test Group respondents as confused, and without considering
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`the 2 Control Group respondents indicated by Dr. Isaacson, the overall level of net
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`confusion would increase to 7.7%. However, it is my understanding that this result is still
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`below the thresholds courts have found to be probative of likelihood of confusion.16
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`Therefore, whether or not these 4 respondents are included and counted as confused, it
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`would not impact my opinion as stated in my original declaration. That is, the results of my
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`survey would still demonstrate that relevant consumers are not likely to be confused by
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`Rogue Ridge’s use of the ROGUE RIDGE mark.
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`(3) Response to the Opinion that My Survey is Leading Because It Uses the Phrase “Brand
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`Name” As Many as 19 Times
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`18. Dr. Isaacson claims that my use of the term “brand name” to describe “ROGUE RIDGE”
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`and “REBEL RIDGE” in the survey questions was leading. Specifically, Dr. Isaacson
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`16 McCarthy on Trademarks and Unfair Competition § 32:189 (5th ed.).
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`claims that use of the term “brand name” is leading “because they suggest to respondents
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`that ROGUE RIDGE and REBEL RIDGE are brand names.”17 However, this criticism is
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`unpersuasive for several reasons.
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`19. First, “ROGUE RIDGE” is a brand name. Therefore, there is nothing inappropriate about
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`describing it as such. Indeed, Dr. Isaacson claims that using the term “brand name” is
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`leading, but provides no explanation about how it is leading or what impact it would have
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`on the results. Further, Dr. Isaacson refers to no citations indicating that it is inappropriate
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`to refer to a brand name as such in an Eveready survey.
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`20. Second, using the term “brand name” was a purposely conservative design choice. If, for
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`example, I had used the term “electric mountain bike” throughout my survey to describe
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`the “ROGUE RIDGE” mark, it may have led respondents to only consider the mark in the
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`context of electric mountain bikes and thus limit their answer accordingly. That is,
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`respondents may not have considered the mark in terms of goods and services outside the
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`category of electric mountain bikes. By using the term “brand name,” however, it allowed
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`respondents to search their memory more broadly for companies, brands, goods, and
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`services beyond the category of electric mountain bikes such as, for example, apparel,
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`weightlifting equipment, stationary bicycles, or personal training services. Thus, to the
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`extent that there was any impact in using the term “brand name” instead of “electric
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`mountain bike” it would provide more opportunity for respondents to mention Coulter
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`Ventures or their goods and services in response to the key survey questions. Thus, it was a
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`purposely conservative design choice.
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`17 Expert Rebuttal Report of Dr. Bruce Isaacson, ¶ 71.
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`21. Finally, to the extent Dr. Isaacson believes that the term “brand name” is leading, it is
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`important to point out that the leading effect would be equal between the test condition and
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`the control condition. Recall that, for purposes of my opinion, I rely on the net difference
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`between the test condition and the control condition, where I find that the result is below
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`the levels that courts have found to be probative of confusion.
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`(4) Response to the Opinion that My Survey Provides Measures Limited to Purchasers of
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`Electric Mountain Bikes and the Plain Text Mark
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`22. Dr. Isaacson claims that, because the trademark registration for ROGUE RIDGE specifies a
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`class of goods consisting of electric mountain bikes and mountain bikes, I should have also
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`included mountain bike purchasers in my survey. Dr. Isaacson claims that there is “no way
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`to know what the results of the Sowers Survey would have been if it had been conducted
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`among purchasers of mountain bikes.”18 However, this statement is factually inaccurate.
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`23. First, it is my understanding that Rogue Ridge only sells electric mountain bikes19 and thus,
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`it was appropriate to survey potential purchasers of electric mountain bikes. However, it is
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`important to note that my survey did not exclude non-electric mountain bike purchasers.
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`Q11 asked respondents which, if any, types of bikes they were likely to personally
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`purchase in the next 12 months. Based on this question, 144 of the respondents in my
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`survey indicated that they were potential purchasers of non-electric mountain bikes.
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`Among these respondents, the net level of confusion is 10.7%. It is my understanding that
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`this result is also below the threshold that courts typically consider to be probative of
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`likelihood of confusion.20 Stated another way, there is nothing to suggest that the likelihood
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`18 Expert Rebuttal Report of Dr. Bruce Isaacson, ¶ 73.
`19 https://rogueridge.com/electric-fat-tire-hunting-e-bikes/ (accessed June 24, 2021).
`20 McCarthy on Trademarks and Unfair Competition § 32:188 (5th ed.).
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`of confusion results and my opinion would be any different if the universe had also
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`included non-electric mountain bike purchasers.
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`24. Additionally, Dr. Isaacson incorrectly explains the method I employed to ensure a
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`representative survey sample.21 To ensure a representative sample, I employed a technique
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`called click balancing which is a very common and widely accepted method used in the
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`field of market research.22 As explained and footnoted in my report, “Click-balancing was
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`implemented to ensure that the individuals who had the opportunity to qualify for the
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`survey approximate the U.S. Census in terms of age, gender, and region. .. ‘Click
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`balancing’ refers to the process of ensuring that the group of people who click on the
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`survey link (not to be confused with the group of people who qualify and complete the
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`survey) is representative of the U.S. population. The process of click balancing involves
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`sending periodic updates to the panel vendor on the age, gender, and region breakdown of
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`inbound clicks on the survey link so that the panel vendor can make any necessary
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`adjustments to their survey invitation mailings (i.e., which age/gender/region groups they
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`send invitations to and in what quantity).”23
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`25. To illustrate how click balancing works, Professor Jacoby provides the following example:
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`Suppose one needed to conduct a survey of ‘individuals with an active interest in
`bird watching,’ but the incidence of males and females in this defined universe
`was unknown. One could interview males and females in proportion to their
`presence in the U.S. population as a whole (approximately 49 percent male and 51
`percent female) and ask screening questions to identify individuals having an
`active interest in bird watching. If it turned out that 75 percent of those qualifying
`as having an active interest in bird watching were female, and 25 percent were
`male, given that males and females were screened in proper proportion to their
`presence in the U.S. population as a whole, one can have a reasonable degree of
`
`
`21 Expert Declaration of Brian Sowers, ¶ 74, fn 55.
`22 Jacoby, J. (2013). Trademark Surveys Volume 1, Designing, Implementing, and Evaluating Surveys. US:
`American Bar Association, pp.384-385.
`23 Expert Declaration of Brian Sowers, ¶ 24, fn 16.
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`confidence that the obtained sample is reasonably representative of the defined
`universe on the screened dimension(s), which, in this example, is gender.”24
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`26. Thus, by employing click balancing in my survey, I am confident that my data is
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`representative of the population for which I set out to survey. Furthermore, the data listing
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`provided in my appendices contains demographic profile data for each respondent and
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`when viewed as whole, shows no obvious demographic skews which might suggest that the
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`sample is not representative of the relevant populations of interest.
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`27. Finally, Dr. Isaacson questions whether my decision to test the ROGUE RIDGE mark in
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`plain text was a conservative choice.25 Specifically, Dr. Isaacson states “[t]he visual
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`prominence of the word ‘ROGUE’ in all of the stylized logos is important, because this
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`dispute centers on whether the use of this word makes ROGUE RIDGE confusingly similar
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`to ROGUE.”26
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`28. As stated in my report, the ROGUE RIDGE word mark is, arguably, more visually similar
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`to the Coulter Ventures Marks than the stylized ROGUE RIDGE mark. The stylized
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`ROGUE RIDGE mark, on the other hand, has the bicycle chainring logo above the word
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`Rogue which could potentially dispel confusion since Coulter Ventures is not a bike
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`company nor do their stationary bikes typically have exposed chainrings. Additionally, the
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`first letter of the word “Rogue” in the stylized mark is cut-off in a diagonal fashion. Indeed,
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`of the two ROGUE RIDGE marks at issue, the plain text mark that I tested more clearly
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`displays for respondents the word “ROGUE” that is being contested. Thus, to the extent
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`that relevant consumers are not confused by the ROGUE RIDGE mark, it would strongly
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`24 Jacoby, J. (2013). Trademark Surveys Volume 1, Designing, Implementing, and Evaluating Surveys. US:
`American Bar Association, pp.384-385.
`25 Expert Rebuttal Report of Dr. Bruce Isaacson, ¶ 76.
`26 Id., ¶ 80.
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`suggest that those consumers would be less likely to be confused by the stylized mark,
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`which is arguably more visually dissimilar to Counter Ventures’ Marks.
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`29. Further, because I employed a proper control, my survey tests the level of consumer
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`confusion that can be directly attributed to the word “ROGUE.” That is, because nothing
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`but the word “Rogue” and “Rebel” differed between the test condition and the control
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`condition, any difference in the responses to the likelihood of confusion questions between
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`the Test Group and the Control Group can only be attributed to the word “ROGUE.”
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`Therefore, to the extent that the “ROGUE RIDGE” mark would be likely to confuse
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`consumers, my survey demonstrates the level of confusion that would be directly attributed
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`to the word “ROGUE.”.
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`30. Finally, it is important to note that, to the extent Dr. Isaacson believes that the stylized
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`ROGUE RIDGE mark would result in a different level of likelihood of confusion, he
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`presents no consumer survey evidence himself to support this claim. Therefore, any
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`assertion by Dr. Isaacson that the stylized ROGUE RIDGE mark is likely to result in a
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`different level of likelihood of confusion is speculative and unsubstantiated.
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`SUMMARY
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`31.
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`For the reasons described above, Dr. Isaacson’s criticisms of my likelihood of confusion
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`survey are misplaced, flawed, and cannot be relied upon.
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` I
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` declare under penalty of perjury of the laws of the United States that the foregoing is true and
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`correct. Executed on June 28, 2021, in Acton, Massachusetts.
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`
`
`Brian M. Sowers
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`Appendix A: Curriculum Vitae of Brian M. Sowers
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`
`
`Applied Marketing Science, Inc.
`303 Wyman Street, Suite 205
`Waltham, MA 02451
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`Voice: (781) 250-6313
` Fax: (781) 684-0075
` E-mail:bsowers@ams-inc.com
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`
`EDUCATION
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`
`2012
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`1995
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`
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`University of Colorado, Colorado Springs
`Master of Business Administration
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`
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`Roanoke College
`Bachelor of Arts in History
`
`Principal
`APPLIED MARKETING SCIENCE, INC., Waltham, MA
` Lead the firm’s Litigation Support practice to support expert testimony
`in civil cases through survey research and other marketing science
`initiatives.
`• Manage referrals and support affiliated academic experts in matters
`where consumer opinions and behaviors are an important determinant
`of liability and damages.
`• Manage case teams in complex cases (e.g., trademark and trade dress
`infringement, class action matters, false and deceptive advertising,
`antitrust issues and patent damages).
`• Assist attorneys with assessing the benefits of collecting market
`research data, critique opposing expert reports, and prepare experts for
`deposition and trial questioning.
`• Provide expert research consultation, expert witness testimony, and
`rebuttal critiques for consumer surveys designed for trademark, trade
`dress, false advertising, and class action litigation.
`
` •
`
`Senior Manager
`APPLIED MARKETING SCIENCE, INC., Waltham, MA
`
` •
`
` Supported consumer survey expert witnesses and attorneys in market
`research survey design and provided consultation to help experts
`prepare for deposition and trial testimony.
`• Managed litigation consulting projects involving consumer surveys in
`trademark, false advertising, class action, and patent infringement
`matters.
`• Coordinated all aspects of research project, including survey design,
`fieldwork, data analysis, and report development.
`
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`EMPLOYMENT
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`2014 – Present
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`2011 – 2014
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`A-1
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`2003 – 2011
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`2002 – 2003
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`1999 – 2002
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`1996 – 1999
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`Senior Project Manager
`FORBES CONSULTING GROUP, Lexington, MA
`•
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`Independently led all phases of custom quantitative and qualitative
`research for an industry leading marketing research supplier dedicated
`to consumer-driven business analysis.
`• Helped clients identify new marketplace opportunities, developed
`communication and positioning strategies, measured brand equity, and
`increased customer satisfaction and retention.
`• Managed approximately $2.5 million of custom research annually.
`
`Senior Analyst
`LOCKHEED MARTIN CORPORATION, Fairfax, VA
`• Developed market analyses and competitive strategies for multiple
`lines of business.
`• Granted Top Secret security clearance for the position.
`
`Market Research Analyst
`MCI WORLDCOM, Arlington, VA
`• Designed, executed, analyzed, and delivered quantitative and
`qualitative market research to support internal marketing clients.
`Insights helped carry singularly focused telecom giant into a world of
`multiple competitors and diverse product lines.
`• Required a heightened awareness of technology shifts, a sense of
`consumer appetite, and readiness to navigate the shifting landscape.
`• Honed research skills in variable research methodologies. Received
`multiple individual and team awards.
`
`Project Manager
`MARKETING ANALYSTS, INC., Charleston, SC
`• Managed custom quantitative market research for a leading Honomichl
`50 research supplier.
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`A-2
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`

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`PUBLICATIONS
`
`Chorn, J.A., Santana, M.C., & Sowers, B.M. (2020). Surveys in Lanham Act Matters. IP
`Litigator, 26(6), 1-7.
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`
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`EXPERT WITNESS (expert opinions and testimony in the last 5 years)
`
`Richard Plass et al. v Sanimax USA LLC
`Case No. 2015-cv-000165, Wisconsin Circuit Court, Brown County
`Class Certification (2016 Report)
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`Smart Vent Products, Inc. v Crawl Space Door System, Inc.
`Case No. 01:13-cv-05691, United States District Court, District of New Jersey
`Genericness (2016 Report)
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`Blumenthal Distributing, Inc. v Herman Miller, Inc.
`Case No. 5:14-cv-01926, United States District Court, Central District of California
`Trade Dress Confusion (2016 Report)
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`Health New England, Inc. v Trinity Health Corporation
`Case No. 3:15-cv