Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1249525
`11/21/2022
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91272204
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`Sazerac Brands, LLC
`
`CYNTHIA JOHNSON WALDEN
`FISH & RICHARDSON P.C.
`PO BOX 1022
`MINNEAPOLIS, MN 55440-1022
`UNITED STATES
`Primary email: tmdoctc@fr.com
`Secondary email(s): walden@fr.com, rthomas@fr.com, cheng@fr.com,
`ecote@fr.com
`617-542-5070
`
`Testimony For Plaintiff
`
`Ryan Steinman
`
`walden@fr.com, rthomas@fr.com, steinman@fr.com, ranns@fr.com, tm-
`doctc@fr.com
`
`/Ryan Steinman/
`
`11/21/2022
`
`FINAL_Sarah Butler Decl Test_OTX 1 Part 1.pdf(2177200 bytes )
`FINAL_Sarah Butler Decl Test_OTX 1 Part 2.pdf(5666530 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the Matter of Application Serial No. 88/801,483
`For the Trademark BUFFALO CHIP
`Published in the Official Gazette on June 15, 2021
`
`
`Opposer,
`
`v.
`
`SAZERAC BRANDS, LLC,
`
`
`
`
`
`BUFFALO CHIP CAMPGROUND, LLC,
`
`
`
`Applicant.
`
`
`
`
`
`Opposition No.: 91272204
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`DECLARATION OF SARAH BUTLER
`
`I, Sarah Butler, pursuant to 28 U.S.C. § 1746, declare as follows:
`
`1.
`
`I am a Managing Director at NERA Economic Consulting (“NERA”), where I am
`
`the Chair of the Survey and Sampling Practice and a member of the Intellectual Property, Product
`
`Liability, Antitrust, and Labor Practices. I have substantial experience conducting and using
`
`surveys to measure consumer opinions and behaviors regarding products and services including
`
`purchase processes, product attributes, branding awareness and strength, new product research,
`
`and communications strategies.
`
`2.
`
`I have been retained as an expert witness on behalf of the Opposer in this
`
`proceeding, Sazerac Brands, LLC. I have personal knowledge of the facts set forth herein, which
`
`are known by me to be true and correct, and if called as a witness, I could and would competently
`
`testify thereto.
`
`3.
`
`To evaluate the likelihood of confusion between Applicant’s BUFFALO CHIP
`
`mark and Opposer’s BUFFALO TRACE mark, I conducted a survey of 403 relevant consumers
`
`

`

`(199 in the Test Group and 204 in the Control Group) who have purchased or would be likely to
`
`purchase whiskey or bourbon. My survey demonstrates that when the BUFFALO CHIP mark is
`
`used on or in connection with bourbon products, consumers are likely to be confused and are likely
`
`to believe that BUFFALO CHIP comes from the same company, is affiliated or associated with,
`
`or received authorization or approval from, the company that makes BUFFALO TRACE.
`
`4.
`
`At a high level, my survey results are as follows: (a) a total of 35.2 percent of Test
`
`Group respondents identified BUFFALO CHIP as being from the same company as, being
`
`associated or affiliated with, or receiving authorization or approval from, the company that makes
`
`or puts out the BUFFALO TRACE brand; (b) Only 7.9 percent of respondents in the Control Group
`
`(shown the name CATTLE CHIP) indicated that CATTLE CHIP was made by the same company
`
`as, was associated or affiliated with, or received authorization or approval from, the company that
`
`makes or puts out the BUFFALO TRACE brand; (c) I calculate a net 27.3 percent of respondents
`
`as confused, which indicates that consumers in the market for the types of goods offered by the
`
`Applicant would be likely to believe bourbon made under the BUFFALO CHIP name is from the
`
`same company, is associated or affiliated with, or received authorization or approval from, the
`
`company that makes the BUFFALO TRACE brand.
`
`5.
`
`Attached hereto as OTX 1 is a true and correct copy of my full expert report in this
`
`matter, titled “Expert Report of Sarah Butler,” dated May 13, 2022 (“Expert Report”). Attached to
`
`the Expert Report are true and correct copy of accompanying Exhibits A-G, which include my
`
`curriculum vitae, a list of materials considered in conducting my survey, and the survey itself.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`
`
`
`
`

`

`Executed on November 21, 2022 in San Francisco, California.
`
`
`
`
`
`
`
`
`
`By:
`Sarah Butler
`
`
`
`
`
`
`
`
`
`

`

`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that on November 21, 2022, a true and complete copy of
`Declaration of Sarah Butler was forwarded via electronic mail addressed to the following counsel of
`record for Applicant Buffalo Chip Campground, LLC:
`
`
`Sander J. Morehead
`sander.morehead@woodsfuller.com
`
`Troy N. Leonard
`troy.leonard@woodsfuller.com
`
`Joel E. Engel III
`Joel.engel@woodsfuller.com
`
`
`
`
`
`/s/ Ryan C. Steinman
`Ryan C. Steinman
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`OTX 1
`OTX 1
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`SAZERAC BRANDS, LLC,
`
`Opposer,
`
` v.
`
`BUFFALO CHIP CAMPGROUND, LLC,
`
` Applicant.
`
`Serial Number: 88/801,483
`
`Opposition No.: 91272204
`
`Mark: BUFFALO CHIP
`
`Filed: February 18, 2020
`
`Published: June 15, 2021
`
`EXPERT REPORT OF SARAH BUTLER
`
`

`

`EXPERT REPORT OF SARAH BUTLER
`
`
`
`
`
`
`
`Table of Contents
`
`I. 
`
`QUALIFICATIONS
`
`II.  DOCUMENTS REVIEWED
`
`III.  ASSIGNMENT AND SUMMARY OF OPINIONS
`
`IV.  BACKGROUND
`
`SURVEY METHODOLOGY
`V. 
`A.  Survey Population
`B.  Sampling of the Relevant Population
`C.  Quality Control Measures for the Survey
`D.  Questionnaire
`
`VI.  SURVEY RESULTS
`
`VII.  CONCLUSIONS
`
`
`
`
`
`
`
` 
`
`3 
`
`4 
`
`5 
`
`7 
`
`8 
`9 
`9 
`10 
`11 
`
`16 
`
`26 
`
`2 
`
`

`

`I. QUALIFICATIONS
`
`1.
`
`I am a Managing Director at NERA Economic Consulting (“NERA”), where I am
`
`the Chair of the Survey and Sampling Practice and a member of the Intellectual Property,
`
`Product Liability, Antitrust, and Labor Practices. My business address is 4 Embarcadero Center,
`
`San Francisco, CA 94111. NERA is a firm providing expert statistical, survey, economic, and
`
`financial research analysis.
`
`2.
`
`Among my responsibilities, I conduct survey research and market research and
`
`design and implement statistical samples for matters involving business and consumer decision-
`
`making, consumer choice, and consumer behavior. In the course of my career, I have conducted
`
`research for leading corporations and government agencies on consumers, employees, and
`
`businesses. My work has been included in numerous lawsuits involving issues related to
`
`trademark and trade dress confusion, secondary meaning, false advertising, and patent
`
`infringement, as well as in antitrust and employment-related litigations. I am a member of the
`
`American Association of Public Opinion Research, the American Statistical Association, the
`
`Intellectual Property Section of the American Bar Association, and the International Trademark
`
`Association (INTA).
`
`3.
`
`I have also worked as a market researcher conducting surveys of consumers and
`
`professionals, focus groups, and in-depth interviews. I worked as an independent consultant
`
`conducting research for the Department of Environment and Rural Affairs in the United
`
`Kingdom. I have taught courses focused on or involving research methodologies in both the
`
`United States and Europe. I hold a Master’s Degree from Trinity College, Dublin and another
`
`Master’s Degree from Temple University.
`
` 
`
`3 
`
`

`

`4.
`
`I have substantial experience conducting and using surveys to measure consumer
`
`opinions and behaviors regarding products and services including purchase processes, product
`
`attributes, branding awareness and strength, new product research, and communications
`
`strategies. During my career in academic and commercial research, I have personally facilitated a
`
`wide range of research including large-scale surveys, in-depth interviews, focus groups, and
`
`observational studies.
`
`5.
`
`I have submitted expert reports, been deposed, and have testified at trial within
`
`the last five years. A list of my testimony is included on my current resume, which is attached as
`
`Exhibit A.
`
`6.
`
`NERA is being compensated for my services in this matter at my standard rate of
`
`$700 per hour. Members of the staff at NERA have worked at my direction to assist me in this
`
`engagement. No part of my compensation or NERA’s compensation depends on the outcome of
`
`this litigation. Throughout this report, I have used the terms “I” and “my” to refer to work
`
`performed by me and/or others under my direction.
`
`
`
`II. DOCUMENTS REVIEWED
`
`7.
`
`As part of my work, I reviewed the Notice of Opposition1 filed by Sazerac Brands,
`
`LLC (“Opposer”) and other materials. A list of the specific materials I reviewed and relied upon
`
`can be found in Exhibit B.
`
` 
`1 Notice of Opposition, Opposition No.: 91272204, SAZERAC BRANDS, LLC v. BUFFALO CHIP CAMPGROUND, LLC, In the
`United States Patent and Trademark Office Before the Trademark Trial and Appeal Board, Serial No. 88/801,483, dated
`October 8, 2021 (hereinafter, “Notice of Opposition”).
`
`4 
`
` 
`
`

`

`III. ASSIGNMENT AND SUMMARY OF OPINIONS
`
`8.
`
`In early 2020, Buffalo Chip Campground, LLC (“Buffalo Chip” or “Applicant”)
`
`filed a trademark application to register the mark “BUFFALO CHIP” for alcoholic beverages,
`
`namely, bourbon and other distilled spirits in Class 33, as well as for other types of entertainment
`
`services.2 Opposer sells bourbon and whiskey goods under the mark “BUFFALO TRACE” and
`
`at this time has opposed Applicant’s application to register the mark “BUFFALO CHIP.”3
`
`9.
`
`In its Notice of Opposition, Opposer argues that “Applicant’s proposed use of the
`
`BUFFALO CHIP mark is likely to cause confusion, to cause mistake, and/or to deceive as to the
`
`origin or source of Applicant’s goods or services, and/or to cause consumers to believe,
`
`mistakenly, that Applicant or its products are sponsored, licensed, approved, or affiliated with
`
`Opposer or Opposer’s goods and services.”4
`
`10.
`
`To evaluate the likelihood of confusion between Applicant’s BUFFALO CHIP
`
`mark and Opposer’s BUFFALO TRACE mark, I conducted a survey of 403 relevant consumers
`
`(199 in the Test Group and 204 in the Control Group) who have purchased or would be likely to
`
`purchase whiskey or bourbon. My survey demonstrates that when the BUFFALO CHIP mark is
`
`used on or in connection with bourbon products, consumers are likely be confused and are likely
`
`to believe that BUFFALO CHIP comes from the same company, is affiliated or associated with,
`
`or received authorization or approval from, the company that makes BUFFALO TRACE.
`
`11. More specifically, my survey results are as follows:
`
` 
`
`2 Notice of Opposition, ¶ 11.
`
`3 See, Notice of Opposition.
`
`4 Notice of Opposition, ¶ 22.
`
` 
`
`5 
`
`

`

`a)
`
`A total of 35.2 percent of Test Group respondents identified BUFFALO CHIP as
`
`being from the same company as, being associated or affiliated with, or receiving
`
`authorization or approval from, the company that makes or puts out the BUFFALO
`
`TRACE brand.
`
`b)
`
`To account for any possible guessing or other sources of survey noise, my survey
`
`included a Control Group. Respondents in the Control Group were shown the name
`
`CATTLE CHIP and were asked the same series of questions as was asked in the Test
`
`Group. A total of sixteen respondents (7.9 percent) in the Control Group indicated that
`
`CATTLE CHIP was made by the same company as, was associated or affiliated with, or
`
`received authorization or approval from, the company that makes or puts out the
`
`BUFFALO TRACE brand.
`
`c)
`
`Using the Control Group responses to net out any possible guessing or survey
`
`“noise,” I calculate 27.3 percent of respondents as confused. These results indicate that
`
`consumers in the market for the types of goods offered by the Applicant would believe
`
`bourbon made under the BUFFALO CHIP name is from the same company, is associated
`
`or affiliated with, or received authorization or approval from, the company that makes the
`
`BUFFALO TRACE brand.
`
`12.
`
`The remainder of this report discusses my general understanding of the
`
`background in this matter, a description of the research I conducted, and a detailed discussion of
`
`the results of my survey.
`
` 
`
`6 
`
`

`

`IV. BACKGROUND
`
`13.
`
`Applicant Buffalo Chip is a South Dakota limited liability company with an
`
`address of 20622 Fort Meade Way, Sturgis, South Dakota.5 Buffalo Chip filed an intent-to-use
`
`application for the mark BUFFALO CHIP in various classes of alcoholic goods and services in
`
`February 2020.6 The registration sought covers distilled spirits in Class 33 including whiskey and
`
`bourbon.7
`
`14.
`
`Opposer Sazerac Brands, LLC is a limited liability company under the laws of
`
`Delaware, with its principal place of business in Louisville, Kentucky.8 Opposer markets and sells
`
`various brands of alcoholic beverages and distilled spirits, including vodkas, whiskeys, tequilas,
`
`and liqueurs.9 Since as early as 1999, Opposer Sazerac has sold and distributed bourbon and
`
`bourbon related products under the trademark BUFFALO TRACE.10 Opposer’s products and
`
`services bearing the BUFFALO TRACE mark are sold nationwide.11
`
`15.
`
`Opposer alleges that the registration of Applicant’s BUFFALO CHIP mark “with
`
`the leading and prominent use of the term BUFFALO, is likely to lead to confusion in the
`
`marketplace with Opposer’s BUFFALO Marks.”12 As a consequence, Opposer alleges that
`
`“Applicant’s proposed use of the applied-for BUFFALO CHIP mark is likely to cause confusion,
`
`to cause mistake, and/or to deceive as to the origin or source of Applicant’s goods and services,
`
` 
`
`5 Notice of Opposition, ¶ 2.
`
`6 Notice of Opposition, ¶ 11.
`
`7 Notice of Opposition, ¶ 11.
`
`8 Notice of Opposition, ¶ 1.
`
`9 Notice of Opposition, ¶ 3.
`
`10 Notice of Opposition, ¶ 4.
`
`11 Notice of Opposition, ¶¶ 5-6.
`
`12 Notice of Opposition, ¶ 18.
`
` 
`
`7 
`
`

`

`and/or to cause consumers to believe, mistakenly, that Applicant or its products are sponsored,
`
`licensed, approved, or affiliated with Opposer or Opposer’s goods and services.”13
`
`16.
`
`To evaluate the extent to which, if at all, Applicant’s use of BUFFALO CHIP as a
`
`brand name for bourbon products causes a likelihood of confusion with Opposer’s BUFFALO
`
`TRACE products and services, I designed and implemented a survey.
`
`V. SURVEY METHODOLOGY
`
`17.
`
`The design of my research follows the generally accepted principles for the design
`
`of surveys to be used as evidence in litigation.14 In general, the design of a reliable survey
`
`requires careful attention to the following key areas:
`
` The definition of the relevant population;
`
` The procedures for sampling from the relevant population;
`
` The survey questions used;
`
` The stimuli shown to respondents; and
`
` The protocol for calculating the results from the survey.15
`
`18.
`
`The discussion of the survey I conducted is organized around each of these key
`
`areas.
`
`13 Notice of Opposition, ¶ 22.
`
` 
`
`14 Diamond, S. S. (2011). “Reference Guide on Survey Research,” Reference Manual on Scientific Evidence, Committee on the
`Development of the Third Edition of the Reference Manual on Scientific Evidence; Federal Judicial Center; National Research
`Council (hereinafter, “Diamond”), pp. 359-423.
`
`15 The Federal Judicial Center’s (2004) Manual for Complex Litigation, Fourth Edition, §11.493, p. 103 phrases these key areas
`as:
`(cid:149) the population was properly chosen and defined;
`(cid:149) the sample chosen was representative of that population;
`(cid:149) the data gathered were accurately reported; and
`(cid:149) the data were analyzed in accordance with accepted statistical principles.
`
`8 
`
` 
`
`

`

`A.
`
`Survey Population
`
`19.
`
`The population for my survey was United States residents age 21 years old or
`
`older who either have purchased whiskey or bourbon in the past three months, or who are likely
`
`to purchase whiskey or bourbon in the next three months. Respondents also had to indicate that
`
`they typically spend between $30.00 and $39.99 on a 750 ml. bottle of whiskey or bourbon.16
`
`B.
`
`Sampling of the Relevant Population
`
`20.
`
`Potential survey respondents were contacted by Veridata Insights (“Veridata”), an
`
`online panel and data collection services company.17 Veridata is an independent data collection
`
`company that I have prior experience working with, and that is not associated with NERA in any
`
`way. Veridata uses a variety of quality control measures to ensure the reliability and integrity of
`
`the respondents and the responses they provide. Veridata complies with the standards and ethics
`
`for online survey data panels set forth by the Insights Association.18 Veridata’s standard quality
`
`control measures were applied in this study.
`
`21.
`
`A total of 403 respondents qualified for and completed the survey. The survey
`
`invitation is provided in Exhibit C, the complete questionnaire is provided in Exhibit D, and
`
`screenshots of the survey as it appeared to respondents are provided in Exhibit E.
`
`22.
`
`Data for the survey were collected between April 14, 2022 and April 22, 2022.
`
` 
`16 See, https://seelbachs.com/products/buffalo-chip-american-whiskey, last accessed May 2, 2022;
`https://drizly.com/liquor/whiskey/american-whiskey/buffalo-chip-american-whiskey/p117445, last accessed May 2, 2022;
`https://www.mybottlebutler.com/products/buffalo-chip-american-whiskey-750ml, last accessed May 2, 2022.
`
`17 Additional information about Veridata Insights is available on their website at https://www.veridatainsights.com, last accessed
`May 5, 2022.
`
`18 The Insights Association is an organization representing the industry and profession of market research and analytics
`(https://www.insightsassociation.org/About-Us, last accessed May 5, 2022).
`
`9 
`
` 
`
`

`

`C. Quality Control Measures for the Survey
`
`23.
`
`To ensure that my data are of the highest quality, I implemented quality control
`
`measures in addition to those undertaken by Veridata:
`
`a. As is standard survey practice for litigation, the survey was conducted in a
`
`“double-blind” fashion; that is, neither the staff at Veridata nor any of the
`
`respondents were aware of the survey sponsor or the ultimate intention of the
`
`survey.19
`
`b. Respondents were able to take the survey on a desktop, laptop, or tablet computer,
`
`or on their mobile phone or cell phone.
`
`c. Respondents had to correctly answer a Google reCAPTCHA question to ensure
`
`that a person, and not a computer or “bot,” was taking the survey.20
`
`d. Respondents were also required to enter their state of residence and zip code, and
`
`if these data conflicted with one another, the respondent was excluded.
`
`a. Additionally, respondents who had completed a survey about alcoholic beverages
`
`or who indicated that they did not know or were unsure whether they had
`
`participated in survey about any of the products, were screened out.
`
`e. The survey program was tested, and the initial results were reviewed to ensure
`
`that there were no errors in the programming, respondents were able to view the
`
`stimuli, and that respondents were able to understand and answer the questions as
`
`asked.
`
`19 Diamond, pp. 410-411.
`
` 
`
`20 “reCAPTCHA uses an advanced risk analysis engine and adaptive challenges to keep malicious software from engaging in
`abusive activities.” https://www.google.com/recaptcha/intro/v3.html, last accessed May 5, 2022.
`
`10 
`
` 
`
`

`

`D. Questionnaire
`
`24.
`
`To ensure that respondents were part of the relevant population, I asked a series of
`
`screening questions.21 First, potential respondents were asked their age and gender. Respondents
`
`who provided an age below 21 or selected “Prefer not to answer” were screened out.
`
`25.
`
`Next, respondents were asked to identify their state and zip code. If the zip code
`
`provided did not match their state of residence, the respondent was screened out. Respondents
`
`who indicated that they reside outside of the United States were also screened out. Respondents
`
`were also asked if they had taken a survey on various types of products in the past month. Those
`
`who selected “Alcoholic beverages” or “Don’t know / unsure” were screened out.
`
`26.
`
`Following these questions, respondents were asked to select from a list the types
`
`of alcohol, if any, they had purchased in the past three months. The list, which was randomized,
`
`included: wine, beer, vodka, whiskey, bourbon, gin and tequila. For each type of alcohol,
`
`respondents could select “Yes,” “No” or “Don’t know / unsure.” Respondents were then provided
`
`the same list and were asked to indicate if they were likely to purchase any of these types of
`
`alcohol in the next three months. Again, respondents were able to select “Yes,” “No” or “Don’t
`
`know / unsure.”
`
`27.
`
`Respondents who indicated that they have purchased or are likely to purchase
`
`whiskey or bourbon were asked one final screening question. Respondents were asked, when
`
`purchasing whiskey or bourbon, how much they typically spend on a 750 ml. bottle. Response
`
`options ranged from “Less than $10” to “$50 or more.”22 Respondents were also provided with a
`
` 
`21 The questionnaire can be found in Exhibit D.
`
`22 The ends of this scale were rotated so that respondents either saw the scale reflected from “Less than $10” to “$50 or more”, or
`from “$50 or more” to “Less than $10.”
`
`11 
`
` 
`
`

`

`“Don’t know / unsure” option. Only those who selected “Between $30 and $39.99” were qualified
`
`for the survey.
`
`28.
`
`After answering the screening questions, qualified respondents proceeded to the
`
`main questionnaire. The main questionnaire was a Squirt-style lineup. This type of survey is a
`
`standard and well-accepted survey format used when Applicant’s and Opposer’s marks have
`
`proximity in the marketplace.23 Respondents were provided with the following sets of
`
`instructions:
`
`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 “Don’t know / no
`opinion.” Please do not guess.
`
`29.
`
`On the next screen, respondents were shown further instructions before being
`
`randomly assigned to either the Test or Control Group. Respondents were given the following
`
`instructions:
`
`On the next few screens you will be shown the brand names of some bourbon
`products. You will then be asked some questions. We are interested in your
`honest opinions.
`
`Please take as much time as you would like to look at the next few screens.
`For each screen, click the “Continue” button at the bottom of the screen when
`you are ready to move on to the next screen. You will not be able to go back
`to previous screens.
`
`30.
`
`On the next screen, after being randomly assigned, respondents were told “This is
`
`the first brand name:” and were shown the name “BUFFALO TRACE.”24,25
`
` 
`23 See, e.g., Swann, J. B. (2022). “Likelihood of Confusion,” Trademark and Deceptive Advertising Surveys: Law, Science, and
`Design, 2nd ed, Edited by S. Diamond & J. Swann. Chicago, IL: ABA Publishing, pp. 59-78. 
`
`24 Respondents were required to view the name for at least 5 seconds before they were able to continue in the survey.
`
`25 In TTAB proceedings it is standard practice to show the mark as it appears in the application rather than an actual marketplace
`use of the mark. As Jay writes, “Likelihood-of-confusion surveys in Board proceedings that do not show a word mark in
`standard character form or use a stimulus that includes elements not part of the mark to be registered…have been judged to
`be of limited probative value” Jay, D. E. (2014). “He Who Steals My Good Name: Likelihood-of-Confusion Surveys in
`TTAB Proceedings,” Trademark Reporter 104(5), pp. 1141-1182, p. 1173.
`
`12 
`
` 
`
`

`

`31.
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`On the next screen, respondents were told “Now you will be shown some brand
`
`names of other bourbon products.” Following this, respondents were presented with a randomized
`
`list of ten brand names. The list included: EVAN WILLIAMS, SMOOTH AMBLER, HIGH
`
`WEST, BLUE NOTE, BULLEIT, BASIL HAYDEN’S, BELLE MEADE, EAGLE RARE, and
`
`WILD TURKEY. The products selected were selected as a mix of well-known and lesser-known
`
`brands, in a similar price range to Buffalo Trace,26 and include names with references to animals,
`
`and names that are two words starting with the letter “B.”
`
`32.
`
`As shown in Figure 1 below, Test Group respondents were shown these brands, in
`
`addition to the at-issue BUFFALO CHIP name. Control Group respondents were shown the same
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`list but, were shown the control name CATTLE CHIP instead of BUFFALO CHIP.
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`26 See examples of this pricing included as Exhibit G.
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` 
`
`13 
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`

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`Figure 1: Bourbon Brand Names Shown to Test Group Respondents
`
`
`
`33.
`
`Respondents were then asked a series of questions. They were first asked if any of
`
`the brands shown were made or put out by the same company that makes or puts out the brand
`
`shown first. Respondents who selected “Yes” were presented with the list of brands, were asked
`
`to select which brand/brands, and were subsequently asked why they believed the brand/brands
`
`were made by the same company that makes the brand they were shown first. This question series
`
`is shown below:
`
`Q. Do you think any of these brands are made or put out by the same company that makes
`or puts out the brand you saw first?27
`1. Yes
`2. No
`3. Don’t know / no opinion
`
`
`
` 
`27 Response options “Yes” and “No” were rotated to guard against order effects.
`
`14 
`
` 
`
`

`

`
`
`
`
`Q. Which of these brands are made or put out by the same company as the brand you saw
`first?28
`
`Q. For each brand you selected, please describe why you think it is made or put out by the
`same company as the brand you saw first.29
`
`
`34.
`
`Respondents were then asked a series of questions regarding association and
`
`affiliation. They were first asked if any of the brands shown were associated or affiliated with the
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`company that makes or puts out the brand shown first. Respondents who selected “Yes” were
`
`presented with the list of brands, were asked to select which brand/brands, and were subsequently
`
`asked why they believed the brand/brands were associated or affiliated with company that makes
`
`the brand they were shown first. This question series is shown below:
`
`Q. Do you think any of these brands are associated or affiliated with the company that
`makes or puts out the brand you saw first?30
`1. Yes
`2. No
`3. Don’t know / no opinion
`
`Q. Which of these brands are associated or affiliated with the company that makes or puts
`out the brand you saw first?31
`
` Q. For each brand you selected, please describe why you think it is associated or affiliated
`with the company that makes or puts out the brand you saw first.32
`
`
`
`35.
`
`After this series of questions, respondents were asked a final series of questions as
`
`to authorization or approval. First, they were asked if any of the brands received authorization or
`
`approval from the company that makes the brand they saw first. Respondents who selected “Yes”
`
` 
`28 Respondents were shown the list of brand names, and were able to select brand/brands by clicking the brand name.
`
`29 Underneath this prompt, respondents were shown each brand selected in the prior question, and a text box appeared to the right
`of each brand, where respondents could type their response.
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`30 Response options “Yes” and “No” were rotated to guard against order effects.
`
`31 Respondents were shown the list of brand names, and were able to select brand/brands by clicking the brand name.
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`32 Underneath this prompt, respondents were shown each brand selected in the prior question, and a text box appeared to the right
`of each brand, where respondents could type their response.
`
`15 
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` 
`
`

`

`were presented with the list of brands, asked to select which brand/brands, and were subsequently
`
`asked why they believed the brand/brands received authorization or approval from the company
`
`that makes the brand they were shown first. This question series is shown below:
`
`Q. Do you think any of these brands received authorization or approval from the company
`that makes or puts out the brand you saw first? 33
`1. Yes
`2. No
`3. Don’t know / no opinion
`
`Q. Which of these brands received authorization or approval from the company that makes
`or puts out the brand you saw first? (Please select all that apply.)34
`
`Q. For each brand you selected, please describe why you think it received authorization or
`approval from the company that makes or puts out the brand you saw first.35
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`
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`36.
`
`After this series of questions, respondents were thanked for their time and the
`
`survey was completed.
`
`VI. SURVEY RESULTS
`
`37.
`
`My survey included a total of 403 respondents, 199 in the Test Group and 204 in
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`the Control Group.36 The sample contained a mix of men and women, with men comprising the
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`majority of the sample.37 The sample also contains respondents across a range of ages.
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`Respondents were from a broad range of geographies and their locations generally represent the
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`33 Response options “Yes” and “No” were rotated to guard against order effects.
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`34 Respondents were shown the list and were able to select the desired brand/brands by clicking the name.
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`35 Underneath this prompt, respondents were shown each brand selected in the prior question, and a text box appeared to the right
`of each brand, where respondents could type their response.
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`36 The survey data can be found in Exhibit G.
`
`37 The sample was balanced to reflect the distribution of whiskey/bourbon drinkers in the U.S. For example, one Statista Survey
`on Alcoholic Beverages in the U.S. suggests that approximately 39 percent of women are whiskey drinkers, compared to 68
`percent of men (See, study_id47102_statista-survey-on-alcoholic-beverages-2017.xlsx). Another notes that 70 percent of
`bourbon drinkers are male, with the remaining 30 percent of bourbon drinkers being female
`(https://visual.ly/community/Infographics/food/profile-average-american-bourbon-drinker, last accessed April 29, 2022).
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`16 
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`

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`four U.S. Census regions. The gender, age, and Census region of the respondents to my survey are
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`shown below in Tables 1 and 2.
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`Table 1: Age Distribution of Survey Respondents
`
`Age Group
`21-34
`
`35-54
`
`55+
`Total Respondents
`
`Male
`Percent
`25.4%
`
`49.5%
`
`25.1%
`100.0%
`
`Count
`72
`
`140
`
`71
`283
`
`Female
`Percent
`27.5%
`
`Count
`33
`
`Overall
`Percent
`26.1%
`
`Count
`105
`
`58
`
`29
`120
`
`48.3%
`
`24.2%
`100.0%
`
`198
`
`100
`403
`
`49.1%
`
`24.8%
`100.0%
`
`
`
`Source: NERA Alcohol Survey, April 2022.
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`
`
`Table 2: Geographic Distribution of Survey Respondents
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`Region
`3 Northeast
`1 Midwest
`2 South
`4 West
`Total Respondents
`
`Count
`64
`102
`159
`78
`403
`
`Percent
`15.9%
`25.3%
`39.5%
`19.4%
`100.0%
`
`
`
`Source: NERA Alcohol Survey, April 2022.
`
`38.
`
`After looking at the array of brand names, respondents were asked whether they
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`thought any of the brands shown were made by the same company that makes the brand they saw
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`first, Buffalo Trace. In the Test Group, 39.7 percent said that at least one of the brands in the lineup
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`was made by the same company that makes Buffalo Trace. The corresponding percentage in the
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`Control Group is 28.9 percent. These results are shown in Table 3 below.
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`17 
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`

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`Table 3: Any Brands Made by Buffalo Trace
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`Response
`
`Yes
`No
`Don't know / no opinion
`Total Respondents
`
`Test
`
`Count
`79
`35
`85
`199
`
`Percent
`39.7%
`17.6%
`42.7%
`100.0%
`
`Control
`Count
`Percent
`59
`28.9%
`41
`20.1%
`104
`51.0%
`204
`100.0%
`
`Q1. Do you think any of these brands are made or put out by the same company that makes or puts
`out the brand you saw first?
`
`
`
`Source: NERA Alcohol Survey, April 2022.
`
`
`
`39.
`
`Respondents were then asked to indicate which brand or brands they thought were
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`made by the company that makes Buffalo Trace. As shown in Figure 2 below, 23.6 percent of
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`respondents in the Test Group thought that Buffalo Chip was made by the same company that
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`makes Buffalo Trace. As shown below, respondents in the Test Group were almost twice as likely
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`to identify Buffalo Chip as made by the company making Buffalo Trace than they were to
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`identify the next brand (i.e., Wild Turkey at 12.6 percent).
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`18 
`
`

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`Figure 2: Brands Test Group Respondents Believe Are Made by Buffalo Trace
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`
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`Source: NERA Alcohol Survey, April 2022.
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`
`
`40.
`
`A total of 4.4 percent of respondents in the Control Group thought that Cattle Chip
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`was made by the same company that makes Buffalo Trace. The net difference between the Test and
`