Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1271568
`03/13/2023
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`ESTTA Tracking number:
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`Filing date:
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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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`91270724
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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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`Plaintiff
`BBK Tobacco & Foods, LLP
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`CINDY VILLANUEVA
`DICKINSON WRIGHT PLLC
`1850 N CENTRAL AVE
`14TH FLOOR
`PHOENIX, AZ 85004
`UNITED STATES
`Primary email: dwtrademarks@dickinsonwright.com
`Secondary email(s): flong@dickinsonwright.com, fcampbell@dickinsonwright.co,
`legal@hbiin.com, nlevine@dickinsonwright.com, cvil-
`lanueva@dickinsonwright.com
`602-285-5066
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`Testimony For Plaintiff
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`Cindy Villanueva
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`dwtrademarks@dickinsonwright.com, cvillanueva@dickinsonwright.com, nlev-
`ine@dickinsonwright.com, flong@dickinsonwright.com
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`/Cindy Villanueva/
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`03/13/2023
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`Attachments
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`Opposers Testimonial Declaration of Dr. J. Chorn.pdf(1829314 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Opposer,
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`Mark Goodwin
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`Applicant.
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`__________________________________________)
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`Opposition No. 91270724
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`Serial No. 87/704,855
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`Mark: INHALE ZEN & Design
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`TESTIMONIAL DECLARATION OF JACQUELINE CHORN, Ph.D.
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`I, Jacqueline Chorn, Ph.D., under penalty of perjury, declare and state, as my direct trial
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`testimony as a witness for Opposer in this action, as follows:
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`1. I am an Associate Director of NERA Economic Consulting (“NERA”), where I am a
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`member of the Intellectual Property and Survey Research, Design, and Analysis practices. I
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`have worked on surveys in lawsuits involving issues of trademark and trade dress confusion,
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`false and misleading advertising, secondary meaning, genericness, fame, consumer class actions,
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`and patent infringement. In the course of my career, I have surveyed consumers of various
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`products and services, medical professionals, and decision makers who work in specialized
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`fields.
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`2. I was retained by counsel for Opposer BBK Tobacco & Foods, LLP, in the above-
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`captioned matter, to conduct a survey to determine whether consumers of cigarette tubes
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`associate the word “zen” with a single company or brand. The purpose of the survey was to
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`determine whether the term “zen” has acquired secondary meaning for cigarette tubes for the
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`1
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`purpose of assessing the strength of the ZEN mark for cigarette tubes.
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`3.
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`I designed the survey methodology, directed the implementation of the study, and
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`analyzed the data to form conclusions.
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`4. Attached hereto as Exhibit 1 is a true and correct copy of my expert report, dated May 4,
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`2022, that I prepared in connection with the above-captioned matter and its
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`accompanying attachments. I stand by the statement and opinions contained therein.
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`5. As set forth in my report, I determined that among 150 respondents who are prospective
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`purchasers of cigarette tubes, 73 or 48.7 percent indicated that they associated the word “zen”
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`with the cigarette tubes of one company or brand.
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`6. After removing the control group respondents as a means to remove survey “noise,” I
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`determined that a net 31.3 percent of the respondents associate the word “zen” with the cigarette
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`tubes from one company or brand.
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`7.
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`In my experience, these levels of association are sufficient to establish that a substantial
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`portion of consumers of cigarette tubes perceive the word “zen” as a source identifier for
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`cigarette tubes.
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`8.
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`I verify to the best of my knowledge, the facts and opinion in my report are true and
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`correct and the report represents my testimony in Opposer BBK’s initial trial period.
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`I declare under the penalty of perjury that the foregoing is true and correct.
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`Signed this March 3, 2023
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`Jacqueline Chorn, Ph.D.
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`2
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`EXHIBIT 1
`EXHIBIT 1
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`BBK Tobacco & Foods, LLP
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`Opposer,
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`v.
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`Mark Goodwin
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`Applicant.
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`Serial Number: 87/704,855
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`Mark: INHALE ZEN & Design
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`Filed: December 20, 2018
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`Published: March 30, 2021
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`Opposition No. 91270724
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`DECLARATION OF JACQUELINE CHORN, Ph.D.
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`DECLARATION OF JACQUELINE CHORN, Ph.D.
`In connection with
`BBK Tobacco & Foods, LLP v. Mark Goodwin
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`Table of Contents
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`QUALIFICATIONS ........................................................................... 3
`I.
`DOCUMENTS REVIEWED ........................................................... 5
`II.
`III. ASSIGNMENT AND SUMMARY OF OPINIONS .............. 5
`IV.
`BACKGROUND .................................................................................. 7
`V.
`SECONDARY MEANING SURVEY ......................................... 7
`A.
`Survey Population ........................................................................................ 8
`B.
`Sampling of the Relevant Population ................................................... 8
`C.
`Quality Control Measures for the Survey........................................... 9
`D.
`Questionnaire ................................................................................................ 11
`E.
`Stimuli Shown .............................................................................................. 13
`VI.
`SURVEY RESULTS ......................................................................... 14
`VII. CONCLUSIONS ................................................................................ 19
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`I, Jacqueline A. Chorn, Ph.D., hereby state and declare as follows:
`I. QUALIFICATIONS
`1.
`I am an Associate Director at NERA Economic Consulting (“NERA”), where I
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`am a member of the Intellectual Property and Survey Research, Design, and Analysis practices.
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`My business address is 500 Dallas Street Suite 1400, Houston, TX 77002. NERA is a firm that
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`provides economic, financial, and statistical research and analysis.
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`2.
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`I earned a Ph.D. in Psychology from the City University of New York. My
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`courses in graduate school focused on research methodology and quantitative analysis. Among
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`the courses I completed are Research Methods (I and II), Social Psychology, Mixed Effect
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`Models in Psychology, Hierarchical Linear Modeling, and Path Analysis, Factor Analysis, and
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`Structural Equation Modeling. While I was a graduate student, I was also an adjunct professor at
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`John Jay College of Criminal Justice where I taught undergraduate courses on Cognitive
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`Psychology, Social Psychology, Research Methods, and Forensic/Legal Psychology. During
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`graduate school I worked on several large-scale experimental studies funded by the National
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`Science Foundation that examined human decision making in various contexts. Findings from
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`these studies have been published in top peer-reviewed journals in the field.
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`3.
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`After completing my Ph.D. in 2013, I was hired as an Assistant Professor of
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`Psychology at the University of the Pacific (UOP). At UOP, I developed and taught
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`undergraduate courses in Research Methods and Statistics, Social Psychology, Legal Psychology,
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`and Introductory Psychology.
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`4.
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`In 2015, I left the UOP to join Applied Marketing Science (AMS), a market
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`research and consulting firm where I designed and conducted consumer surveys for litigation and
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`advertising claim substantiation.
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`5.
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`I joined NERA in 2021. Among my responsibilities at NERA, I design research,
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`write questionnaires, supervise data collection, and analyze data. I have worked on surveys in
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`lawsuits involving issues of trademark and trade dress confusion, false and misleading
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`advertising, secondary meaning, genericness, fame, consumer class actions, and patent
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`infringement. I have also worked on surveys to help advertisers substantiate advertising claims
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`with reliable evidence. In the course of my career, I have surveyed consumers of various products
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`and services, medical professionals, and decision makers who work in specialized fields.
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`6.
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`I am a member of the International Trademark Association (INTA) and the
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`American Association for Public Opinion Research (AAPOR). Through my INTA membership, I
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`have served as an editor on The Trademark Reporter (TMR) and as a member of the
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`Commentaries and Book Reviews Subcommittee between 2018 and 2021. I currently serve as a
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`member on the Non-Traditional Marks Committee of the INTA. I have hosted a roundtable
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`discussion at the Annual ANA/BAA Marketing Law Conference, hosted table topics at INTA,
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`and presented at the American Psychological Law Society.
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`7.
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`I have submitted expert reports, been deposed, and have testified at trial within
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`the last five years. My curriculum vitae, including a list of cases in which I have testified or been
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`deposed is attached as Exhibit A.
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`8.
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`NERA is being compensated for my services in this matter at my standard rate of
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`$495 per hour. Members of the staff at NERA have worked at my direction to assist me in this
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`engagement. No part of my compensation or NERA’s compensation depends on the outcome of
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`this litigation. Throughout this report, I have used the terms “I” and “my” to refer to work
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`performed by me and/or others under my direction.
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`II. DOCUMENTS REVIEWED
`9.
`I reviewed the Notice of Opposition filed by BBK Tobacco & Foods, LLP
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`(hereinafter, “BBK Tobacco” or “Opposer”),1 and other materials. A list of the specific materials
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`I reviewed can be found in Exhibit B.
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`III. ASSIGNMENT AND SUMMARY OF OPINIONS
`10.
`I was asked by counsel for Opposer to determine, through use of a double-blind
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`survey, whether consumers of cigarette tubes, a good identified in U.S. Patent and Trademark
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`Office (“PTO”) registration No. 4,229,278, associate the word “zen” with a single source of
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`cigarette tubes. I understood that the purpose of the survey was to determine whether the word
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`“zen” has attained secondary meaning for cigarette tubes for the purposes of assessing the
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`commercial strength of the ZEN mark for cigarette tubes. To determine whether consumers of
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`cigarette tubes associate the word “zen” with a single source of cigarette tubes, I designed a
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`survey and retained a survey company to field it.
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`11.
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`My survey asked 300 prospective purchasers of cigarette tubes to indicate
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`whether they associate either the word “zen” (the test) or “menthol” (the control) with one
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`company or brand of cigarette tubes.2 My survey utilized a variety of control measures, discussed
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`more fully in the sections that follow, to ensure that my data were of the highest quality. My
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`conclusions are based on the survey conducted and are as follows:
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`1 Notice of Opposition, BBK Tobacco & Foods, LLP v. Mark Goodwin, In the United States Patent and Trademark
`Office Before the Trademark Trial and Appeal Board, Serial No. 87/704,855, dated July 28, 2021 (hereinafter,
`“Notice of Opposition”).
`2 Jacoby, J. (2013). Trademark Surveys: Designing, Implementing, and Evaluating Surveys, Chicago, IL: ABA
`Publishing (hereinafter, “Jacoby”), pp. 280-281. Jacoby addresses the proper universe for secondary meaning
`surveys where the goal is to assess whether the relevant buying class associates a name with a product or source
`and concludes that, at least for frequently purchased goods, “the proper universe is prospective purchasers.”
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`• A total of 150 respondents who are prospective purchasers of cigarette tubes were
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`shown the word “zen” and asked whether they associate that word with cigarette
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`tubes from “one company or brand,” “more than one company or brand,” “no
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`particular company or brand,” or to indicate “Don’t know / no opinion.”
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`• Of these 150 respondents, 73 or 48.7 percent indicated that they associate the word
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`“zen” with the cigarette tubes of one company or brand.
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`• To ensure that respondents were not guessing or inattentive, my survey also
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`included a control group. The control group allowed me to “net out” or subtract
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`“noise” from the key estimate. In this survey, the control stimuli used was the
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`word “menthol.”
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`• A total of 26 or 17.3 percent of the 150 respondents assigned to the control group
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`stated that they associate the word “menthol” with the cigarette tubes of one
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`company or brand.
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`• Based on these results, I determined that a net 31.3 percent of the respondents
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`associate the word “zen” with the cigarette tubes from one company or brand.
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`12.
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`These results demonstrate that a substantial portion of consumers of cigarette
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`tubes perceive the word “zen” as a source identifier for cigarette tubes.
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`13.
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`The remainder of this report discusses my general understanding of the
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`background in this matter, provides the details of the research I conducted, and the results of my
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`survey.
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`IV. BACKGROUND
`14.
`Applicant Mark Goodwin (hereinafter “Applicant”) “owns and operates a licensed
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`medical marijuana caregiver location called Inhale Zen in Standish, Maine.”3 Applicant filed an
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`intent-to-use application for the mark INHALE ZEN & Design
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` in Class 034 for a
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`number of smoking products.4
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`15.
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`Opposer believes the registration of this mark is likely to cause confusion with
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`Opposer’s ZEN Marks due to the distinctive word element “ZEN.”5
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`V. SECONDARY MEANING SURVEY
`16.
`Against this background, I was asked to conduct a survey to determine whether
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`consumers of cigarette tubes perceive the word “zen” as a source identifier for cigarette tubes. I
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`designed and conducted a survey based on generally accepted principles of surveys used in
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`litigation.
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`17.
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`The generally accepted principles for the design of surveys to be used as evidence
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`in litigation6 require careful attention to the following key areas:
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`▪ The definition of the relevant population;
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`▪ The procedures for sampling from the relevant population;
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`▪ The survey questions used;
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`3 Notice of Opposition, ¶ 7.
`4 Id., ¶ 10.
`5 Id., ¶¶ 15-30.
`6 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, pp. 359-423 (hereinafter, “Diamond”).
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`▪ The stimuli shown to respondents; and
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`▪ The protocol for calculating the results from the survey.7
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`18.
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`The discussion of the survey I conducted is organized around each of these key
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`areas.
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`A. Survey Population
`The population for my survey was United States residents age 21 years old8 or
`19.
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`older who first indicated that they were likely to purchase roll-your-own accessories for smoking,
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`and subsequently indicated that they were likely to purchase cigarette tubes specifically.
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`B. Sampling of the Relevant Population
`20.
`Potential survey respondents were contacted using an internet panel hosted by
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`Prodege Market Research (hereinafter, “Prodege”), an online panel and data collection services
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`company.9 Prodege uses a variety of quality control measures to ensure the reliability and
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`integrity of the responses it receives. For example, Prodege uses a double opt-in registration
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`process, which uses digital fingerprinting that creates a “fingerprint” for each respondent based on
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`computer characteristics such as IP addresses, which can then be used to identify respondents and
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`to exclude individuals who attempt to take the same survey more than once. Prodege also embeds
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`age and gender into a member’s unique survey link to ensure that the person responding to the
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`survey invitation is the same person who originally enrolled. Prodege complies with the standards
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`7 Manual for Complex Litigation, Fourth Edition phrases these key areas as such:
` • 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, p. 103.
`8 In 2019, the legal minimum age for sale of tobacco products was raised from 18 to 21.
`https://www.fda.gov/tobacco-products/retail-sales-tobacco-products/tobacco-21, last accessed April 21, 2022.
`9 Additional information about Prodege is available on their website at https://www.prodege.com, last accessed April
`21, 2021.
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`and ethics for online survey data panels set forth by the Insights Association.10 Prodege’s standard
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`quality control measures were applied in this study.
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`21.
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`The data for my survey were collected between April 12, 2022 and April 18,
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`2022. Potential respondents were unaware of the purpose or topic of the survey and needed to
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`meet the screening criteria outlined below to qualify for the survey. A total of 3,646 potential
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`respondents began the survey and, of these, 300 qualified for and completed the survey.11 The
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`complete questionnaire is provided in Exhibit D, and screenshots of the survey as it appeared to
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`respondents are included as Exhibit E.
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`C. Quality Control Measures for the Survey
`22.
`To ensure that my data are of the highest quality, I implemented additional quality
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`control measures to those undertaken by Prodege:
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`a. As is standard survey practice for litigation, the survey was conducted in a “double-
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`blind” fashion; that is, neither the staff at Prodege nor any of the respondents were
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`aware of the survey sponsor or the ultimate intention of the surveys.12
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`b. Respondents were able to take the survey on a desktop, laptop, or tablet computer,
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`or on their mobile phone or cell phone.
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`c. Respondents had to correctly answer a CAPTCHA question to ensure that a person,
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`and not a computer or “bot,” was taking the survey.13
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`10 The Insights Association is an organization representing the industry and profession of market research and
`analytics; https://www.insightsassociation.org/About-Us, last accessed April 22, 2021.
`11 The invitation for the survey is included in Exhibit C.
`12 Diamond, pp. 410-411.
`13 The acronym CAPTCHA stands for “Completely Automated Public Turing Test to Tell Computers and Humans
`Apart.” For more information on how CAPTCHA works, see Captcha, “CAPTCHA: Telling Humans and
`Computers Apart Automatically,” http://www.captcha.net/, last accessed April 21, 2022.
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`d. Respondents were required to enter their state and zip code. If the two answers
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`conflicted, the respondent was screened out of the survey.
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`e. Respondents who indicated that they did not understand or were unwilling to adhere
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`to the survey instructions were also screened out of the survey.
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`f. Additionally, respondents who had previously completed a survey about roll-
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`your-own accessories for smoking in the past six months, or who indicated that
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`they did not know or were unsure whether they had participated, were screened
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`out.
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`g. Respondents were also screened out if they indicated that they or someone in their
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`household worked for a marketing research or advertising company, a company
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`that makes or manufactures roll-your-own accessories for smoking (e.g., cigarette
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`rolling papers, filter tips, cigarette tubes, pipe cleaners, rolling machines), or a
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`company that makes or manufactures tobacco or smoking devices (e.g., cigarettes,
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`e-cigarettes, cigars, e-cigars, chewing tobacco, snuff, vape pens, electronic pipes),
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`or if they answered that they did not know or were unsure whether they or
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`someone in their household worked for one of these types of companies.
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`h. Respondents were screened out if they failed the final screener question, which
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`was included to serve as a quality control measure to ensure that respondents were
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`reading and responding carefully to the survey
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`i. The survey was tested, and the initial results were reviewed to ensure that there
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`were no errors in the programming, that respondents were able to view the
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`images, and that respondents were able to understand and answer the questions as
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`asked.
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`D. Questionnaire
`23.
`To ensure that the respondents were part of the relevant population as defined
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`above, a series of screening questions were asked.14,15 First, potential respondents were asked
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`their age and gender. Respondents who provided an age below 21 or selected “Prefer not to
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`answer” for either age or gender, were screened out.
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`24.
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`Next, respondents were asked to identify their state and zip code. If the zip code
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`provided did not match their state of residence, the respondent was screened out. Respondents
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`who indicated that they reside outside of the United States were also screened out.
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`25.
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`Next, respondents were asked an industry screener question to ensure that those
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`with specialized knowledge were not permitted to participate. Respondents who indicated that
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`either they or someone in their household works for a market research or advertising company, a
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`company that makes or manufactures roll-your-own accessories for smoking, a company that
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`makes or manufactures tobacco or smoking devices, and those who answered that they did not
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`know or were unsure whether they or someone in their household worked for one of these types
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`of companies were screened out. Respondents were next asked whether they had taken a survey
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`on various topics in the past six months. Respondents were screened out if they indicated that they
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`had completed a survey about roll-your-own accessories for smoking or indicated that they did
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`not know or were unsure whether they had participated in a survey on the topics presented in the
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`response options.
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`26.
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`Respondents were then asked to select, from a list, the products, if any, they were
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`likely to purchase in the next six months.16 Respondents who indicated that they were likely to
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`14 The questionnaire can be found in Exhibit D.
`15 The screenshots of the survey as it appeared to respondents can be found in Exhibit E.
`16 Respondents could also indicate that they were not likely to purchase any of the items, or that they did not know.
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`purchase roll-your-own accessories for smoking (e.g., cigarette rolling papers, filter tips, cigarette
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`tubes, pipe cleaners, rolling machines) in the next six months were then asked to select, from a
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`list, the types of roll-your-own accessories they were likely to purchase. Only respondents who
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`selected “cigarette tubes” from the list qualified for the survey. Finally, respondents were
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`presented with a quality control question to ensure they were carefully reading and responding.
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`Only respondents who passed the quality control question continued to the main questionnaire.
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`27.
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`All qualified respondents were then taken to the main portion of the questionnaire
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`and were provided with the following introduction:
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`Thank you for participating in today’s survey. If you do not know or do not have
`an opinion about any of the questions, please select the “Don’t know / no
`opinion” response option. Please do not guess.
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`28.
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`Next, respondents were randomly assigned to see either the Test or
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`Control word in the following introduction:
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`For the next series of questions, please think about [Zen/Menthol] in relation to
`cigarette tubes.17
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`29.
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`All respondents were then asked to indicate whether they associate the word
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`“Zen” or “Menthol” with the cigarette tubes from one company or brand, more than one company
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`or brand, no particular company or brand, or to indicate that they did not know / had no opinion.
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`The exact question phrasing was:
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`Q. Thinking about cigarette tubes, do you associate [Zen/Menthol] with…
`1. One company or brand
`2. More than one company or brand
`3. No particular company or brand
`4. Don’t know / no opinion
`The order in which “one,” “more than one,” and “no particular” company or
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`30.
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`brand appeared to respondents was randomized to guard against order bias.
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`17 Respondents in the Test Group saw the word “Zen” while those in the Control Group were shown “Menthol.”
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`31.
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`Respondents who indicated that they associated the word with one company or
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`brand were asked to explain why. The phrasing of this open-ended question was:
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`Q. What exactly makes you associate [Zen/Menthol] with one company or brand?”18
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`32.
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`After this final question, the survey was complete, and the respondents were
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`thanked for their time.
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`E. Stimuli Shown
`33.
`To determine whether relevant consumers associate the word “zen” with the
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`cigarette tubes from a single source, I tested the word Zen in relation to cigarette tubes.
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`34.
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`A survey designed to measure whether a term identifies goods from a single
`
`source may also inadvertently include survey “noise” and may generate responses that are
`
`unrelated to the stimulus being tested. Responses unrelated to the specific term or mark being
`
`tested threaten the validity of the estimate and should be eliminated from the final calculation. To
`
`measure the extent to which such responses are affecting the desired estimate, it is standard
`
`practice for survey researchers to also measure the perceptions of a separate group of respondents
`
`using a control stimulus.19
`
`35.
`
`I have included a control group as part of my survey. In a survey to test whether a
`
`term identifies goods from a single source: “The control, in turn, should be one that cannot
`
`reasonably be the cause of a ‘one company’ answer.”20 For this reason, I selected “Menthol” as
`
`
`18 Respondents were also provided with a checkbox for “Don’t know / no opinion.”
`19 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.
`20 Palladino, V. N. (2012). “Secondary Meaning Surveys,” Trademark and Deceptive Advertising Surveys: Law,
`Science, and Design, Edited by S. Diamond and J. Swann. Chicago, IL: ABA Publishing, p. 89 (hereinafter,
`“Palladino”).
`
`
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`
`
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`many companies who put out cigarette tubes sell tubes that use menthol flavoring21 and that word
`
`should not be the cause of a “one company” answer.
`VI. SURVEY RESULTS
`36.
`As shown below in Table 1, my survey included a total of 300 qualified
`
`respondents. The survey respondents included men and women residing in the U.S. across a mix
`
`of age ranges. Respondents were sampled in a way to approximate the demographics of
`
`smokers.22,23
`
`Table 1. Age and Gender Distribution of Survey Respondents
`
`Age Group
`
`21-44
`45-64
`65+
`Total Respondents
`
`Male
`Percent
`32.0%
`14.7%
`6.0%
`52.7%
`
`Count
`96
`44
`18
`158
`
`Female
`Percent
`18.3%
`20.7%
`8.3%
`47.3%
`
`Count
`55
`62
`25
`142
`
`Overall
`Percent
`50.3%
`35.3%
`14.3%
`100.0%
`
`Count
`151
`106
`43
`300
`
`
`
`Source: NERA Smoking Tubes Survey, April 2022
`
`
`
`
`
`
`21 See e.g., https://www.amazon.com/Gambler-Regular-Menthol-Cigarette-
`Tubes/dp/B002TAM98U/ref=sr_1_2?adgrpid=1338106458509143&hvadid=83631877550998&hvbmt=be&hvdev
`=c&hvlocphy=73766&hvnetw=o&hvqmt=e&hvtargid=kwd-83632166343946%3Aloc-
`190&hydadcr=18926_13378623&keywords=gambler+tubes+menthol&qid=1650490897&sr=8-2, last accessed
`April 21, 2022; https://www.amazon.com/Premier-Supermatic-Menthol-Cigarette-
`Filter/dp/B077H3HRM6/ref=sr_1_6?keywords=menthol%2Bcigarette%2Btubes%2Bnewport&qid=1650566764&s
`=hpc&sr=1-6&th=1, last accessed April 21, 2022; https://www.amazon.com/Menthol-100mm-Cigarette-Tubes-
`200ct/dp/B093XWQCB5/ref=sr_1_25?keywords=menthol+cigarette+tubes&qid=1650556949&sprefix=menthol+c
`ig%2Caps%2C108&sr=8-25, last accessed April 21, 2022.
`22 https://www.cdc.gov/tobacco/data_statistics/fact_sheets/adult_data/cig_smoking/index.htm, last accessed April
`20, 2022.
`23 Data for my survey are attached as Exhibit F.
`
`
`
`
`
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`-14-
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`

`37.
`
`The geographic representativeness of respondents is shown in Table 2.
`
`
`
`Table 2. Census Region
`
`Region
`3 Northeast
`1 Midwest
`2 South
`4 West
`Total Respondents
`
`Count
`77
`63
`93
`67
`300
`
`Percent
`25.7%
`21.0%
`31.0%
`22.3%
`100.0%
`
`
`
`Source: NERA Smoking Tubes Survey, April 2022
`
`38.
`
`Respondents were asked to indicate whether they associated the word shown with
`
`“one company or brand,” “more than one company or brand,” “no particular company or brand,”
`
`or indicate that they did not know or did not have an opinion.
`
`39.
`
`In the Test Group, a total of 73 respondents, or 48.7 percent of the total,
`
`associated the word “Zen” with one company or brand. In the Control Group, 26 respondents, or
`
`17.3 percent, associated the word “Menthol” with one company or brand. As shown below in
`
`Table 3, using the control to eliminate survey “noise” yields a net result of 31.3 percent of
`
`respondents who associate the word “Zen” with one company or brand.
`
`Table 3. Whether Respondents Associate Mark with Particular Company or Brand
`
`Response
`One company or brand
`More than one company or brand
`No particular company or brand
`Don’t know / no opinion
`Total Respondents
`
`Test
`
`Percent
`48.7%
`12.7%
`14.7%
`24.0%
`100.0%
`
`Count
`73
`19
`22
`36
`150
`
`Control
`Count
`Percent
`26
`17.3%
`81
`54.0%
`36
`24.0%
`7
`4.7%
`150
`100.0%
`
`Net Percent
`31.3%
` --
` --
` --
`
`Q1. Thinking about cigarette tubes, do you associate [ Zen/Menthol ] with…
`
`Source: NERA Smoking Tubes Survey, April 2022
`
`
`
`
`
`
`
`-15-
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`

`

`40.
`
`These results demonstrate that a substantial proportion of relevant consumers
`
`perceive the word “Zen” as a source identifier for cigarette tubes.
`
`41.
`
`Respondents who indicated that they associate the word “Zen” with one company
`
`or brand were also asked an open-ended follow up question. When asked, “What exactly makes
`
`you associate Zen with one company or brand?,” 29 open-ended responses were indicative of
`
`respondents who were familiar with Zen and associate Zen with one company.
`
`• Respondent 22: “i buy their tubes.”
`
`• Respondent 42: “I associate Zen with one brand but the word I associate with
`
`yoga or meditation.”
`
`• Respondent 73: “the name of the company is zen”
`
`• Respondent 106: “the brand”
`
`• Respondent 182: “product name”
`
`• Respondent 256: “its american [sic] no 1 selling cigarette tubing”
`
`• Respondent 375: “I like the brand.”
`
`• Respondent 418: “I have only seen zen tubes. Nothing else tobacco related is
`
`called zen that I know of so I assumed it was a company that just offered one
`
`item”
`
`• Respondent 435: “It’s a good brand”
`
`• Respondent 519: “it is one of American best selling cigarette tubes”
`
`• Respondent 547: “I have seen this vendor and remember it was by itself”
`
`• Respondent 695: “seen the tubes”
`
`• Respondent 949: “I have seen it stacked with other brand-name products.”
`
`
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`

`

`• Respondent 986: “I have purchased them before, but only know them as tubes.
`
`Don't know if they sell or are related to any other products or brands.”
`
`• Respondent 1,009: “I use Zen tubes and just assumed they were a single brand.”
`
`• Respondent 1,427: “I’ve only seen their name on a box of tubes.”
`
`• Respondent 1,445: “I believe they make tubes for rolling ypur [sic] own smokes.”
`
`• Respondent 1,517: “Recognizable brand, available everywhere, good price, logo
`
`and colors are iconic.”
`
`• Respondent 1,869: “I've seen only 1 company make tobacco products qith [sic]
`
`the word zen on them.”
`
`• Respondent 1,862: “Cigaret [sic] tubes brand”
`
`• Respondent 2,225: “It’s a brand of cigarette tubes”
`
`• Respondent 3,085: “The company name on the box”
`
`• Respondent 3,093: “I thought it is a brand name tube”
`
`• Respondent 3,137: “Have seen their products”
`
`• Respondent 3,245: “famous brand”
`
`• Respondent 3,393: “I recall the name and believe I may have purchased or thought
`
`of purchasing products from but I do not recall exactly.”
`
`• Respondent 3,437: “As a smoker I know about Zen and its products. One of the
`
`top-selling brands. So Zen w”
`
`• Respondent 3,607: “I have seen the band stacked on shelves similar to other
`
`name-brands such as Job or Drum. It just appears to be another brand.”
`
`• Respondent 3,718: “I believe they make cigarette tubes, is all I know about them.”
`
`
`
`
`
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`
`-17-
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`

`

`42.
`
`Respondents who indicated that they associate “Menthol” with one company or
`
`brand were also asked an op