Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1134696
`05/18/2021
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92058781
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`C5 Medical Werks, LLC
`
`DIANA RUTOWSKI
`ORRICK HERRINGTON & SUTCLIFFE LLP
`1000 MARSH ROAD
`MENLO PARK, CA 94025-1015
`UNITED STATES
`Primary Email: ipprosecution@orrick.com
`Secondary Email(s): drutowski@orrick.com, djustice@orrick.com,
`pvogl@orrick.com, bwright@orrick.com
`650-614-7400
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Testimony For Plaintiff
`
`Diana M. Rutowski
`
`ipprosecution@orrick.com, drutowski@orrick.com, lpartmann@orrick.com
`
`/Diana M. Rutowski/
`
`05/18/2021
`
`C5 Parikh Declaration.pdf(79449 bytes )
`Exhibit 1.pdf(1992846 bytes )
`Exhibit 2.pdf(760524 bytes )
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the Matter of Registration Nos. 4,319,095; 4,319,096
`
`
`Petitioner,
`
`
`
`v.
`
`
`C5 Medical Werks, LLC,
`
`
`
`
`
`CeramTec GmbH,
`
`
`
`
`
`
`CANCELLATION NO.: 92058781 (Parent)
`CANCELLATION NO.: 92058796
`
`
`
`
`
`
`Respondent.
`
`
`
`
`DECLARATION OF SARA PARIKH, Ph.D.
`
`
`I am President of Willow Research, LLC, a research and consulting firm that
`
`1.
`
`designs and conducts quantitative and qualitative studies of consumers and professionals.
`
`2.
`
`I have been retained by counsel for Petitioner C5 Medical Werks, LLC (“C5”),
`
`who I understand has been renamed CoorsTek Bioceramics, LLC, in the above-captioned matter
`
`to consult with counsel, review documents and other material produced in this matter, form
`
`opinions and prepare expert reports, and to be available to testify as to my opinions.
`
`3.
`
`Attached hereto as Exhibit 1 is a copy of the expert report I prepared in
`
`connection with the above-captioned matter and its accompanying attachments. As set forth in
`
`my report, my opinion is that the survey of orthopaedic surgeons I prepared and conducted
`
`establishes that the primary significance of the color pink used in the context of hip implant
`
`components is to tell orthopaedic surgeons what type of material the hip implant component is
`
`made from. 90% of respondents consider the color pink used in the context of hip implant
`
`components to be an indicator of the material composition of the component, and 85% consider
`
`
`
`
`
`
`
`
`
`

`

`
`
`it to indicate that the material is ceramic. These results are confirmed by a nearly identical
`
`distribution of results in the control cell.
`
`4.
`
`Attached hereto as Exhibit 2 is a copy of the underlying data for the survey I
`
`conducted in connection with the expert report contained in Exhibit 1.
`
`5.
`
`In 2016, I was engaged by C5 to serve as an expert to opine on similar subject
`
`matter in proceedings between the parties to the above-captioned action before the United States
`
`District Court for the District of Colorado in a case captioned C5 Medical Werks, LLC, et. al. v.
`
`CeramTec GmbH, Case No. 1:14-cv-00643-RBJ (the “District Court Action”). In the District
`
`Court Action, I prepared an expert report, was deposed by counsel for CeramTec, and testified at
`
`trial on September 1, 2016. There, as here, I opined that the primary significance of the color
`
`pink used in the context of hip implant components is to tell orthopaedic surgeons what type of
`
`material the hip implant component is made from. I understand that counsel for C5 will file
`
`relevant excerpts of my testimony in the above-captioned proceeding.
`
`6.
`
`I verify and affirm that to the best of my knowledge, the facts and opinions in my
`
`Initial Report are true and correct, and the Initial Report represents my testimony in Petitioner
`
`C5’s initial trial period.
`
` I
`
` declare under the penalty of perjury that the foregoing is true and correct.
`
`
`
`
`
`Signed this 17 day of May, 2021.
`
`
`
`
`
`
`Sara Parikh, Ph.D.
`
`
`
`
`
`
`
`- 2 -
`
`
`
`

`

`Exhibit 1
`
`DECLARATION OF SARA PARIKH, Ph.D.
`
`

`

`
`
`
`
`
`
`C5 Medical Werks, LLC,
`Petitioner
`
`v.
`
`CeramTec GmbH,
`Respondent
`
` A
`
` Study of Primary Significance
`
`
`December 24, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`© 2020 – All rights reserved Willow Research, LLC www.willowresearch.com
`
`

`

`
`
`
`
`
`TABLE OF CONTENTS
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Page
`
`I.
`
`BACKGROUND ................................................................................................. 1
`
`II.
`
`INTRODUCTION ............................................................................................... 2
`
`III. METHODOLOGY .............................................................................................. 4
`
`IV. RESULTS .......................................................................................................... 13
`
`V. CONCLUSIONS ................................................................................................ 14
`
`
`APPENDICES
`
`A. Sara Parikh Biography and Case List
`
`B. Questionnaire
`
`C. Exhibits
`
`D. Verbatim Responses
`
`
`
`
`
`

`

`
`
`
`
`
`
`
`
`
`
`
`
`
`
`REPORT OF SARA PARIKH, PhD
`
`I, Sara Parikh, state as follows:
`
`
`
`1.
`
`I. BACKGROUND
`
`
`I am President of Willow Research, LLC (“Willow”), a research and consulting firm that
`
`designs and conducts quantitative and qualitative studies of consumers and professionals. I
`
`have over 30 years of experience designing and conducting original research studies on
`
`behalf of a wide range of commercial and non-commercial clients. I oversee all phases of
`
`research, including project design, questionnaire development, field instruction and
`
`supervision, coding and data specification, data analysis, and reporting. I am versed in the
`
`full complement of quantitative and qualitative research methodologies and testify as a
`
`survey expert in litigation. I have an MA and PhD in Sociology from the University of Illinois at
`
`Chicago and a BA in Political Science from the University of Wisconsin-Madison. I am a
`
`member of the International Trademark Association.
`
`
`
`2.
`
`A description of my background and a list of cases in which I have testified, been deposed,
`
`or offered survey evidence in the past five years are attached to Appendix A of this Report.
`
`

`

`
`
`
`
`
`
`II. INTRODUCTION
`
`
`3.
`
`I have been retained by counsel from the law firm, Orrick, Herrington & Sutcliffe LLP, on
`
`behalf of its client, C5 Medical Werks, LLC (“C5”),1 a medical device manufacturer who
`
`makes ceramic hip implants.
`
`
`
`4.
`
`Counsel informed me of a dispute between C5 and CeramTec GmbH (“CeramTec”), another
`
`medical device manufacturer who also makes hip implant components. CeramTec
`
`manufactures and sells ceramic hip implant components in the color pink (i.e., Biolox Delta),
`
`as well as in the color ivory (i.e., Biolox Forte).
`
`
`
`
`
`5.
`
`I am the same Sara Parikh who previously submitted the report entitled, “C5 Medical Werks,
`
`LLC v. Ceramtec GmbH: A Study of Primary Significance and Secondary Meaning” (Dated:
`
`April 8, 2016), and provided deposition and trial testimony in the 2016 District of Colorado
`
`matter between C5 and CeramTec.2
`
`
`
`6.
`
`It is my understanding that CeramTec has two trademark registrations on the Supplemental
`
`Register of the United States Patent and Trademark Office (USPTO) for the color pink for hip
`
`implant components. The registration numbers are as follows:
`• Supplemental Registration No. 4,319,095
`• Supplemental Registration No. 4,319,096
`
`
`
`Counsel informed me that C5 seeks cancellation of the aforementioned CeramTec trademark
`
`registrations on the grounds that the color pink is functional for hip implant components
`
`because it “is a by-product of the composition. In other words, pink is the naturally occurring
`
`color caused by Respondent’s addition of the compound chromium oxide for its hardening
`
`effect.”3 CeramTec, on the other hand, argues that the color pink is not functional.4
`
`7.
`
`
`
`
`
`
`1 I understand that C5 Medical Werks, LLC is now known as CoorsTek Bioceramics LLC.
`2 In the United States District Court for the District of Colorado; C5 Medical Werks, LLC v. CeramTec GmbH, Case No. 14-
`CV-00643-RBJ.
`3 C5 Medical Werks, LLC (Petitioner) v. CeramTec GmbH (Respondent); Petition for Cancellation In the Matter of
`Registration No. 4,319,095 (Dated: 3-3-14). ¶ 8, p. 2. Also see: C5 Medical Werks, LLC (Petitioner) v. CeramTec GmbH
`(Respondent); Petition for Cancellation In the Matter of Registration No. 4,319,096 (Dated: 3-3-14). ¶ 8, p. 2.
`4 C5 Medical Werks, LLC (Petitioner) v. CeramTec GmbH (Registrant); Registrant’s Answer to Petition for Cancellation In
`the Matter of Registration No. 4,319,095 (Dated: 2-28-20). ¶ 8, p. 3. Also see: C5 Medical Werks, LLC (Petitioner) v.
`CeramTec GmbH (Registrant); Registrant’s Answer to Petition for Cancellation In the Matter of Registration No. 4,319,096
`(Dated: 2-28-20). ¶ 8, p. 3.
`
`2
`
`

`

`
`
`Counsel asked if I could design and conduct a survey to determine the primary significance
`
`of the color pink for hip implant components among orthopaedic surgeons. I agreed and
`
`proceeded to design and conduct the study. What follows is a report on the design,
`
`execution, results and conclusions drawn from the research I conducted in this matter.
`
`
`
`I have considered and relied upon the following materials in designing the survey and
`
`formulating my opinions:
`• U.S. Trademark Office Action Regarding Application Serial No. 85/521,237
`(Dated: 2-15-12).
`• CeramTec’s Response to Office Action Regarding Application Serial No.
`85/521,237 (Dated: 8-15-12).
`• U.S. Trademark Office Action Regarding Application Serial No. 85/521,237
`(Dated: 9-6-12).
`• CeramTec’s Request that Application Serial No. 85/521,237 be Registered on the
`Supplemental Register (Dated: 2-22-13).
`• C5 Medical Werks, LLC (Petitioner) v. CeramTec GmbH (Respondent); Petition
`for Cancellation In the Matter of Registration No. 4,319,095 (Dated: 3-3-14).
`• C5 Medical Werks, LLC (Petitioner) v. CeramTec GmbH (Respondent); Petition
`for Cancellation In the Matter of Registration No. 4,319,096 (Dated: 3-3-14).
`• C5 Medical Werks, LLC v. Ceramtec GmbH: A Study of Primary Significance and
`Secondary Meaning (“Parikh 2016 Report,” Dated: April 8, 2016).
`• C5 Medical Werks, LLC and CoorsTek Medical, LLC v. CeramTec GmbH: Expert
`Rebuttal Report of Robert L. Klein to the Report of Dr. Sara Parikh (Dated: May
`23, 2016).
`• American Academy of Orthopaedic Surgeons (AAOS): Orthopaedic Practice in
`the U.S. 2018.
`• C5 Medical Werks, LLC (Petitioner) v. CeramTec GmbH (Registrant); Registrant’s
`Answer to Petition for Cancellation In the Matter of Registration No. 4,319,095
`(Dated: 2-28-20).
`• C5 Medical Werks, LLC (Petitioner) v. CeramTec GmbH (Registrant); Registrant’s
`Answer to Petition for Cancellation In the Matter of Registration No. 4,319,096
`(Dated: 2-28-20).
`
`
`
`8.
`
`
`
`9.
`
`
`
`3
`
`

`

`
`
`
`
`
`
`III. METHODOLOGY
`
`
`10.
`
`In order to measure the primary significance of the color pink for hip implant components,
`
`this study examined what, if anything, the color pink signifies to orthopaedic surgeons (i.e.,
`
`the relevant consuming public) in the context of hip implant components. This is consistent
`
`with the primary significance test as stated in the Lanham Act:
`
`The primary significance of the registered mark to the relevant public…shall be the
`test for determining whether the registered mark has become the generic name of
`goods or services on or in connection with which it has been used.5
`
`
`
`The survey was conducted online between October 5 and 22, 2020 with a national sample of
`
`11.
`
`200 orthopaedic surgeons who perform hip replacement procedures (i.e., total hip
`
`replacements, partial hip replacements, or revisions of hip replacements). Census region
`
`quotas were established to reflect the geographic distribution of orthopaedic surgeons in the
`
`United States.6
`
`
`
`12.
`
`This study incorporated two separate cells: a “test cell” and a “control cell.” The use of both
`
`a test cell and a control cell constitutes an “experimental design” which is akin to including a
`
`placebo in clinical trials. Each respondent was randomly assigned to either the test cell (i.e.,
`
`viewed only the test cell exhibit) or the control cell (i.e., viewed only the control cell exhibit).
`
`
`
`13.
`
`Respondents were drawn from an online panel provided by M3 Global Research, a global
`
`healthcare panel. The number of completed interviews in each cell distribute as follows:
`
`
`
`Number of
`Interviews
`
`ALL RESPONDENTS
`
`Test Cell: Biolox Delta (pink)
`
`Control Cell: Biolox Forte (ivory)
`
`(200)
`
`100
`
`100
`
`
`
`
`
`
`
`
`5 Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3). The Trademark Trial and Appeal Board recognizes that the term
`“generic name” in the Lanham Act encompasses any matter that fails to indicate source, including color. See: Milwaukee
`Elec. Tool Corp. v. Freud Am., Inc., Cancellation No. 92059637, 2019 WL 6522400, at *8 (T.T.A.B. Dec. 2, 2019).
`6 American Academy of Orthopaedic Surgeons (AAOS): Orthopaedic Practice in the U.S. 2018. p. 10.
`
`
`
`4
`
`

`

`
`
`
`14.
`
`Test cell respondents were exposed to a color photograph of CeramTec’s pink Biolox Delta
`
`hip implant component. Control cell respondents were shown a color photograph of the ivory
`
`colored hip implant component made by CeramTec (Biolox Forte), and asked the same
`
`question that was asked of test cell respondents.7 All engraving or writing was redacted from
`
`both the test cell and control cell photographs.
`
`
`
`15.
`
`In selecting a control stimulus for a study like this, the control should share essential
`
`characteristics of the test stimulus, with the exception of the allegedly infringing element:
`
`In designing a survey-experiment, the expert should select a stimulus for the control
`group that shares as many characteristics with the experimental stimulus as possible,
`with the key exception of the characteristic whose influence is being assessed.8
`
`
`
`16.
`
`I selected the ivory Biolox Forte as the control product because it is also a ceramic hip
`
`implant component made by CeramTec, but does not use the color that is at issue (i.e., pink)
`
`and CeramTec is not asserting the color ivory as a trademark. In this survey, the results from
`
`the control cell are used to provide a comparative measure for analysis.
`
`
`
`17.
`
`Reduced size images of the exhibits used are shown below:
`
`
`
`
`
`Test Exhibit: Biolox Delta
`
`
`
` Control Exhibit: Biolox Forte
`
`
`
`18.
`
`Copies of the exhibits used are attached to Appendix C of this Report.
`
`
`
`
`
`
`
`
`
`
`
`
`7 Note that although I use “pink” and “ivory” for reference here, the survey itself only displayed the photograph and did not
`describe the color of the product.
`8 Diamond, S. (2011). Reference Guide on Survey Research. In Reference Manual on Scientific Evidence (3rd ed., p. 399).
`Federal Judicial Center.
`
`5
`
`

`

`
`Screening
`
`
`
`19.
`
`In order to represent the appropriate universe, interviews were conducted with orthopaedic
`
`surgeons who perform hip replacements. Respondents must have met all of the following
`
`criteria:
`• Must be 21 years of age or older
`• Must be a licensed orthopaedic surgeon
`• Must work in a hospital / facility in the United States
`• Must typically perform one or more of the following hip replacement procedures:
`
`- Total hip replacement
`
`- Partial hip replacement
`
`- Revision of hip replacement
`• The respondent, or anyone in his / her household, must not work for a market
`research or advertising firm; or a company that sells, manufactures, or distributes
`medical devices
`
`AND
`• Must not have been retained by a pharmaceutical or medical device company for
`marketing or promotional purposes
`
`
`
`Potential participants were given the following introduction:
`
`20.
`
`Welcome to our survey. We want to assure you that we are interested only in your
`opinions and are not connected with the sale of any product or service. Your identity
`will be kept strictly confidential.
`
`If you normally wear eyeglasses or contact lenses when reading material on a
`computer screen, please wear them for this survey.
`
`NOTE: If you are currently using a smartphone to access this survey, please
`return to it using a desktop, laptop, or tablet.
`
`
`
`
`
`
`
`21.
`
`As a security measure to confirm that an individual is taking the survey rather than a robot or
`
`a computer program, respondents were asked a CAPTCHA (i.e., completely automated
`
`public Turing test to tell computers and humans apart) question before entering the survey.
`
`The CAPTCHA question administers an online test involving a visual perception task that
`
`only humans can successfully pass (not computers). CAPTCHA is a well-accepted quality
`
`control tool used in online surveys.
`
`
`
`
`
`6
`
`

`

`
`22.
`
`
`
`23.
`
`
`
`If the respondent passed the CAPTCHA question, they were asked the following screener
`
`
`
`questions:
`
`Before we begin, what is your age?
`S1
`Open end
`
`If under 21 years, terminate.
`
`
`Are you a licensed physician?
`S2
`
`No
`
`Yes
`If “No,” terminate.
`
`
`Which of the following best describes your medical specialty?
`S3
`Randomize row order.
`
`Orthopaedic surgery
`
`General surgery
`
`Internal Medicine
`
`Neurosurgery
`
`Cardiothoracic surgery
`
`Pediatrics
`
`Dermatology
`
`Rheumatology
`
`Other…Please specify.
`If not “Orthopaedic surgery,” terminate.
`
`
`In what state is the hospital/facility located where you perform surgeries?
`S4
`
`<State drop down list>
`If outside of the U.S., terminate. Check quotas.
`
`In order to ensure that the respondents are prospective users of the hip implant components in
`
`question, the next screening question asked whether they perform different types of hip and
`
`knee procedures. Those who do not typically perform total hip replacements, partial hip
`
`replacements, or revisions of hip replacements were terminated.
`
`S5
`
`Aside from during COVID, which, if any, of the following hip or knee procedures do
`you typically perform?
`
`Please select all that apply.
`Rotate hip procedures in a block and rotate knee procedures in a block.
`
`Total hip replacement
`
`Partial hip replacement
`
`Revision of hip replacement
`
`Total knee replacement
`
`Revision of the knee
`
`Knee arthroscopy
`
`None of the above
`If does not perform “Total hip replacement,” “Partial hip replacement,” or “Revision of
`hip replacement,” terminate.
`
`
`7
`
`

`

`
`24.
`
`Among the 200 qualified respondents, the majority perform total hip replacements (92%),
`
`partial hip replacements (84%), and revisions of hip replacements (72%).
`
`
`
`
`
`ALL RESPONDENTS
`
`Any Hip Procedure (net):
`
`Total hip replacement
`
`Partial hip replacement
`
`Revision of hip replacement
`
`Number of
`Interviews
`
`(200)
`
`100%
`
`92
`
`84
`
`72
`
`
`
`25.
`
`As a standard security measure, participants were asked if they, or anyone in their household,
`
`work for a market research or advertising firm, or a company that sells, manufactures, or
`
`distributes medical devices. Participants who said “yes” were terminated from the screening.
`
`Do you, or does anyone in your household, work for any of the following?
`S6
`Randomize row order.
`No
`
`A market research or advertising firm
`
`A company that sells, manufactures, or distributes medical devices
`
`A financial services company
`
`A company that sells, manufactures, or distributes office supplies
`If “Yes” to “A market research or advertising firm” or “A company that sells,
`manufactures, or distributes medical devices,” terminate.
`
`
`Any participant who in the past year had been retained by a pharmaceutical or medical
`
`Yes
`
`
`
`
`
`device company for marketing or promotional purposes was excluded from the survey.
`
`S7
`
`In the past year, have you been retained by a pharmaceutical or medical device
`company for marketing or promotional purposes?
`
`No
`
`Yes
`If “Yes,” terminate.
`
`
`
`26.
`
`
`
`
`
`8
`
`

`

`
`
`
`27.
`
`28.
`
`Any participant who refused to wear their eyeglasses or contact lenses if they need them
`
`when reading was excluded from the survey.
`
`S8a
`
`Do you usually wear eyeglasses or contact lenses when reading material on a
`computer screen?
`
`No
`
`Yes
`If “No,” skip to S9.
`
`If “Yes” (S8a), ask:
`S8b Will you please wear your eyeglasses or contact lenses for the remainder of the
`survey?
`
`No
`
`Yes
`If “No,” terminate.
`
`
`A quality control question was included, S9, where participants were asked to select the
`
`number “four” from a list of response choices. Those who selected an incorrect number were
`
`terminated from the survey screening, and not allowed to continue with the survey.
`
`For survey quality control purposes, please select the number four.
`S9
`
`10
`
`9
`
`8
`
`7
`
`6
`
`5
`
`4
`
`3
`
`2
`
`1
`
`0
`If does not select “4,” terminate.
`
`
`
`
`
`
`
`9
`
`

`

`
`
`
`29.
`
`Two additional quality control questions (S10a and S10b) were included in the screener to
`
`ensure that respondents were not color blind and that their computer monitors were
`
`rendering color properly. In S10a, respondents were shown a green box and asked what
`
`color they saw, if they did not select “green,” they were terminated. Respondents were then
`
`shown a yellow box in S10b and asked what color they saw, if they did not select “yellow,”
`
`they were terminated.
`
`
`Show image:
`S10a What is the color of the box you see?
`
`Blue
`
`Brown
`
`Green
`
`Orange
`
`Black
`
`Purple
`
`Red
`
`Yellow
`If does not select “Green,” terminate.
`
`
`
`Show image:
`S10b What is the color of the box you see?
`
`Blue
`
`Brown
`
`Green
`
`Orange
`
`Black
`
`Purple
`
`Red
`
`Yellow
`If does not select “Yellow,” terminate.
`
`
`
`
`
`
`
`
`10
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`Questionnaire
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`
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`30.
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`All screened and qualified respondents were given the following instructions not to refer to or
`
`look up any information online, use reference materials, or discuss the questions with anyone
`
`else.
`
`It is very important that you do not refer to or look up any information on the Internet
`or use reference materials that you may have available while you are taking the
`survey. Make sure any other applications on your computer are closed. Please
`answer the questions on your own without discussing them with anyone else.
`
`If you don’t know the answer to a question, select the “DON’T KNOW” response
`option or type it in. Please do not guess.
`
`
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`Respondents were then shown either the test cell exhibit or the control cell exhibit. Each
`
`31.
`
`respondent saw only one of these exhibits (either test or control) during the interview.
`
`Beforehand, they were told:
`
`You are about to see a photograph of a hip implant component. Please click the
`arrow when you are ready to view the photograph.
`
`
`To measure primary significance, respondents were asked in an open-ended fashion, what, if
`
`32.
`
`anything, the color of the hip implant component tells them about it. The exhibit photograph
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`was kept on the screen during this question to serve as a visual reminder.
`
`Q1
`
`
`
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`What, if anything, does the color tell you about the hip implant component in the
`photograph? Please be specific.
`
`You are not limited by the size of the answer box.
`Open end
`Don’t know
`
`
`
`33.
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`34.
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`
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`Respondents were then asked their gender for classification purposes.
`
`C1
`
`
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`What is your gender?
`Male
`Female
`
`
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`The vast majority of respondents in the survey (96%) are male, which is consistent with the
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`gender distribution of orthopaedic surgeons in the United States.9
`
`
`9 American Academy of Orthopaedic Surgeons (AAOS): Orthopaedic Practice in the U.S. 2018. p. 3.
`
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`11
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`Validation
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`
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`35.
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`After completing the survey, each respondent was asked to confirm that the survey
`
`represented a true and complete account of their responses and that they had not looked up
`
`information online, discussed the questions with anyone else, or consulted any outside
`
`sources about the survey. All respondents who are included in these tabulations responded
`
`affirmatively to this validation statement.
`
`VAL
`
`Please select which best describes how you feel about the validation statements
`below:
`
`During this session I have recorded a truthful and complete account of my answers
`to this survey. I have not looked up any information online, discussed the questions
`with anyone else, or consulted any other sources about the survey.
`I have read and AGREE with the above validation statements.
`I do NOT AGREE with the above validation statements.
`
`
`
`
`
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`A copy of the questionnaire used is attached to Appendix B of this Report.
`
`36.
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`
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`37.
`
`The methodology, survey design, execution, and reporting were all conducted in accordance
`
`with generally accepted standards of objective procedure and survey technique. This study
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`was conducted using a “double-blind” technique in which neither the company administering
`
`the survey panel nor the respondents were aware of the purpose of the research or the
`
`identity of the party who commissioned it.
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`
`
`38.
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`Based on the sample size of 100 respondents per cell, the statistical error rate for the key
`
`measures in this study falls into the range of ±5.9% for a statistic such as 90% at the 95%
`
`confidence level. In other words, one would expect that 95 times out of 100, a measurement
`
`that was actually 90%, would accurately be represented in the data by a statistic as high as
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`95.9% or as low as 84.1%.
`
`
`
`39.
`
`The work performed to design, carry out, and report this research is covered by a billing of
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`$100,000. Additional time required for trial testimony or deposition, if necessary, will be billed
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`at the rate of $6,000 per day, plus out of pocket expenses. My compensation is in no way
`
`dependent on the outcome of this matter.
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`
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`12
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`IV. RESULTS
`
`40. When asked what, if anything, the color tells them about the hip implant component they
`
`saw, the vast majority of orthopaedic surgeons in the test cell (90%) spontaneously say that
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`the color pink of the hip implant indicates the material of the component, with most (85%)
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`saying it indicates that the material is ceramic. Results are parallel in the control cell, with
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`87% of orthopaedic surgeons saying that the color ivory of the hip implant component
`
`indicates the material of the component, with most (71%) saying it indicates that the material
`
`is ceramic.
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`
`
`41.
`
`Just 11% of test cell surgeons report that pink indicates the source of the hip implant
`
`component, with 10% naming Biolox Delta / Biolox, and 2% naming CeramTec.10 No one in
`
`the control cell names a source when shown the ivory hip implant component.
`
`Q1
`
`What, if anything, does the color tell you about the hip implant component in the
`photograph? Please be specific.
`
`
`
`
`
`ALL RESPONDENTS
`All Who Have a Belief About Color:
`Material (net):
`Ceramic
`Not metal / chrome
`Alumina / alumina oxide
`Zirconium / zirconium oxide
`Polyethylene
`Type of material
`Vitamin E
`Like bone
`Source (net):
`Biolox Delta / Biolox
`CeramTec
`Not a typical color / Different from
`color I’m used to seeing
`Other
`Don’t Have a Belief About Color:
`
`EXHIBIT SHOWN
`Biolox
`Biolox
`Delta Pink
`Forte Ivory
`(100)
`(100)
`100%
`100%
`91%
`88%
`90
`87
`85
`71
`3
`3
`3
`2
`3
`--
`1
`3
`1
`2
`--
`9
`--
`1
`11
`--
`10
`--
`2
`--
`
`--
`--
`9%
`
`4
`1
`12%
`
`NOTE: Table sums to more than total due to multiple mentions by some respondents.
`
`
`10 Most of the test cell respondents who gave a source response also said that the color pink indicates the material of the
`hip implant component. See Verbatim Responses attached to Appendix D of this Report.
`13
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`

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`
`
`42.
`
`V. CONCLUSIONS
`
`
`This survey finds that the vast majority of orthopaedic surgeons consider the color pink used
`
`in the context of hip implant components to be an indicator of the material composition of the
`
`component (90%), with most saying it indicates that the material is ceramic (85%).
`
`
`
`43.
`
`The virtually identical distribution of results when comparing “material” responses in the test
`
`cell for the pink hip implant component (90%) with “material” responses for the non-
`
`trademark control cell ivory hip implant component (87%) confirms that the pink hip implant
`
`component at issue serves to indicate the material from which it is made.
`
`
`
`44.
`
`Interestingly, these results are even higher than, but still consistent with, the survey I
`
`conducted in 2016 in which two in three orthopaedic surgeons reported that the pink color of
`
`the hip implant component they were shown indicates the material of the component.
`
`
`
`45.
`
`Based on the results of this survey of orthopaedic surgeons, it is my conclusion that the
`
`primary significance of the color pink, used in this context, is to tell orthopaedic surgeons
`
`what type of material the hip implant component is made from.
`
`
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`
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`Pursuant to 28 U.S.C., Section 1746, I declare under penalty of perjury under the laws of the United
`
`States that the foregoing is true and correct.
`
`
`
`
`
`Executed on December 24, 2020 in Chicago, Illinois.
`
`
`
`
`
`
`
`___________________________________
`
`Sara Parikh, PhD
`
`14
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`
`APPENDIX A
`
`
`
`• Sara Parikh Biography and Case List
`
`
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`

`

`
`
`SARA PARIKH, PhD
`
`Biography
`
`
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`
`
`
`Summary
`
`
`
`
`
`
`
`Sara Parikh is an accomplished research professional with a PhD in Sociology and over 30
`years of experience in research design, execution and analysis.
`
`
`Experience
`
`Sara Parikh is President of Willow Research, LLC (“Willow”), a research and consulting firm that
`designs and conducts quantitative and qualitative studies of consumers and professionals. She
`has over 30 years of experience designing and conducting original research studies on behalf of
`a wide range of commercial and non-commercial clients. Sara oversees all phases of research,
`including project design, questionnaire development, field instruction and supervision, coding
`and data specification, data analysis, and reporting. She is versed in the full complement of
`quantitative and qualitative research methodologies and testifies as a survey expert in litigation.
`
`
`Education
`
`PhD and MA in Sociology from the University of Illinois at Chicago
`• Doctoral dissertation supported by a grant from the National Science Foundation
`• Postdoctoral fellow at the American Bar Foundation
`
`BA in Political Science from the University of Wisconsin-Madison
`
`
`Professional Activities
`
`• Presents on topics related to survey research and consumer behavior at professional
`conferences and seminars.
`• Member of the International Trademark Association
`
`
`
`
`Willow Research, LLC 5215 N. Ravenswood, Suite 309 Chicago, IL 60640 www.willowresearch.com
`
`

`

`Cases in which Sara Parikh has testified, been deposed, or offered survey evidence in the past
`five years:
`
`
`
`
`eCU TECHNOLOGY, LLC versus CU DIRECT CORPORATION
`
`Northern District of Texas. 2020.
`
`Likelihood of Confusion
`
`S.C. JOHNSON & SON, INC. versus YOUNG LIVING ESSENTIAL OILS, LC
`National Advertising Division, Better Business Bureau. 2020.
`False Advertising
`
`
`In the Matter of CERTAIN POCKET LIGHTERS (BIC CORPORATION)
`United States International Trade Commission, Washington, DC. 2019.
`
`
`Likelihood of Confusion and Dilution
`
`REX REAL ESTATE I, L.P. versus REX REAL ESTATE EXCHANGE, INC.
`Eastern District of Texas. 2019.
`Likelihood of Confusion
`
`
`PHILANTHROPIST.COM, INC. versus THE GENERAL CONFERENCE
`CORPORATION OF SEVENTH-DAY ADVENTISTS
`United States Patent and Trademark Office, Before the Trademark Trial and
`Appeal Board. 2018.
`Secondary Meaning
`
`
`
`O’REILLY AUTOMOTIVE STORES, INC. versus BEARING TECHNOLOGIES, LTD.
`Western District of Missouri. 2017.
`Secondary Meaning
`
`
`
`POLYGROUP LIMITED (MCO) versus WILLIS ELECTRIC COMPANY, LIMITED
`United States Patent and Trademark Office, Before the Patent Trial and Appeal
`Board. 2017.
`
`Patent Infringement
`
`
`LUXE HOSPITALITY COMPANY, LLC versus SBE ENTERTAINMENT GROUP, LLC,
`ET AL.
`
`Central District of California. 2017.
`
`Genericness
`
`MONSTER ENERGY COMPANY versus MONSTER MOTO, LLC
`United States Patent and Trademark Office, Before the Patent Trial and Appeal
`Board. 2016.
`Overlapping Universe
`
`
`
`HARMLESS HARVEST, INC. versus ALL MARKET INC. D/B/A VITA COCO
`
`Northern District of California. 2016.
`
`Likelihood of Confusion
`
`2
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`C5 MEDICAL WERKS, LLC versus CERAMTEC GMBH
`
`District of Colorado.