Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA842892
`
`Filing date:
`
`08/30/2017
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92063295
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Defendant
`Green Bay Packers, Inc.
`
`ANTHONY A TOMASELLI
`QUARLES & BRADY LLP
`33 E MAIN STREET, SUITE 900
`MADISON, WI 53703
`UNITED STATES
`Email: bennett.berson@quarles.com, anthony.tomaselli@quarles.com,
`martha.snyder@quarles.com, trademarks@quarles.com, aat@quarles.com, an-
`ita.boor@quarles.com
`
`Opposition/Response to Motion
`
`Anthony A. Tomaselli
`
`aat@quarles.com, anita.boor@quarles.com, bryce.loken@quarles.com,
`meme.hilley@quarles.com, ms7@quarles.com
`
`Signature
`
`Date
`
`/Anthony A. Tomaselli/
`
`08/30/2017
`
`Attachments
`
`Expert Report of Philip Johnson.pdf(1040228 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`In re Registration No. 4,593,153
`
`TITLETOWN BREWING CO., LLC,
`
`
`
`
`
`
`
`Cancellation No. 92063295
`
`
`
`EXPERT REPORT OF PHILIP JOHNSON
`
`
`
`
`
`
`
`v.
`
`
`GREEN BAY PACKERS, INC.,
`
`Petitioner,
`
`Respondent.
`
`
`
`
`
`
`
`
`
`
`
`

`

`Titletown Brewing Co., LLC
`
`v.
`
`Green Bay Packers, Inc.
`
`Expert Report of Philip Johnson
`
`A Study of Secondary Meaning of the Term: TITLETOWN
`
`CONFIDENTIAL
`
`

`

`1
`
`4
`
`14
`
`18
`
`Table of Contents
`
`Introduction
`
`Methodology
`
`Results
`
`Conclusions
`
`Appendix 1
`(cid:120) Philip Johnson Curriculum Vitae
`(cid:120) Recent Cases In Which Philip Johnson Has Testified
`
`Appendix 2
`(cid:120) Questionnaire
`
`Appendix 3
`(cid:120) Exhibits
`
`CONFIDENTIAL
`
`

`

`Introduction
`
`1.
`
`I, Philip Johnson, submit this Report for the dispute between Titletown Brewing Co.,
`
`LLC (“TBC”) and the Green Bay Packers, Inc. (“GBP”) in a cancellation proceeding
`
`before the Trademark Trial and Appeal Board.1 This Report contains my opinions as of
`
`the date of this Report, and the basis and reasons for them. Given that the cancellation
`
`proceeding is ongoing, I reserve the right to offer additional opinions in this matter in the
`
`event that other information or data becomes available to me. In addition, I expect
`
`exhibits for my testimony at trial to be created at my direction.
`
`2.
`
`Currently, I am the President of JJG Group, LLC, a company specializing in litigation-
`
`related market research services. Until January 2014, I was the Chief Executive Officer
`
`of Leo J. Shapiro and Associates, Inc., a market research and consulting firm that, among
`
`other activities, conducts surveys.
`
`3.
`
`Over more than 40 years, I have designed and supervised hundreds of surveys measuring
`
`consumer behavior, opinion, and beliefs concerning brands and products, employing a
`
`wide range of research techniques. I have given lectures before the American Bar
`
`Association (ABA), the Practising Law Institute (PLI), the American Intellectual
`
`Property Law Association (AIPLA), and the International Trademark Association (INTA)
`
`on the use of survey research in litigation. I am a member of the American Marketing
`
`Association (AMA), the American Association for Public Opinion Research (AAPOR),
`
`and the International Trademark Association (INTA). I have a B.S. degree in Psychology
`
`1 Cancellation No. 92063295.
`
`CONFIDENTIAL
`
`

`

`2
`
`from Loyola University and an M.B.A. degree from the University of Chicago. A
`
`description of my background and a list of cases in which I have offered testimony at trial
`
`or deposition during the past four years are attached to Appendix 1 of this Report.
`
`4.
`
`During November 2016, I was retained by the law firm, Quarles & Brady LLP, on behalf
`
`of its client, GBP. Counsel from Quarles & Brady LLP informed me of a dispute that has
`
`arisen between TBC and GBP. This dispute focuses on GBP’s registration of
`
`TITLETOWN for arena services, namely providing facilities for sports, concerts,
`
`conventions and exhibitions; hotel, bar and restaurant services.2
`
`5.
`
`According to TBC’s Petition, TBC operates a brew pub and restaurant in Green Bay,
`
`Wisconsin called “Titletown Brewing Co.” TBC’s brew pub restaurant has reportedly
`
`been in operation since December 1996. It is my understanding that TBC provides its
`
`brew pub and restaurant services within the city of Green Bay and is licensed to distribute
`
`its beer only within the state of Wisconsin.
`
`6.
`
`GBP fields a professional football team based in Green Bay, Wisconsin called the Green
`
`Bay Packers (“the Packers”). It is my understanding that, based on GBP’s use of the term
`
`TITLETOWN to refer to the Packers as early as the 1960s, GBP has registered
`
`TITLETOWN with the United States Patent and Trademark Office for various goods and
`
`services, including the goods and services described in the ‘153 Registration.
`
`2 U.S. Patent and Trademark Office Registration No. 4,593,153 (“’153 Registration”). August 26, 2014.
`PACKERS0001301.
`
`CONFIDENTIAL
`
`

`

`3
`
`7.
`
`Accordingly, whether TITLETOWN has acquired secondary meaning among relevant
`
`consumers residing within Wisconsin (i.e., the geographic area where the parties
`
`primarily offer their goods and services) is a focus of this dispute. Counsel asked if I
`
`could design and conduct a survey that would determine who or what the primary
`
`association of the term TITLETOWN is in the minds of the relevant consuming public.
`
`8.
`
`I agreed and proceeded to design and conduct such a study. What follows is a report on
`
`the design, execution, and results from this research.
`
`9.
`
`Materials that I have reviewed in formulating my survey and stated opinions include the
`
`following:
`
`a. TBC’s Petition and supporting materials
`b. GBP’s Answer and supporting materials
`c. U.S. Patent and Trademark Office Registration No. 4,593,153 (dated:
`August 26, 2014); PACKERS00001301
`d. Lambeau Field Redevelopment Explanation of Titletown to NFL (dated:
`November 11, 2002); PACKERS00002056-2065
`e. Research Demographics PowerPoint
`f. Market Report; PACKERS00003709-3738
`g. 2011 NFL Ticketholder Benchmark Study; PACKERS00003769-3820
`h. 2011-Present Overall Atrium Market Research; PACKERS00003867-
`3883
`i. Market Research; PACKERS00003917-3953
`j. Gameday Research Results; PACKERS00005869
`
`CONFIDENTIAL
`
`

`

`4
`
`Methodology
`
`10.
`
`A total of 3063 online surveys were conducted between December 9 and 22, 2016 with
`
`Wisconsin residents who are current and/or prospective visitors of a sports stadium or
`
`arena who also purchased or plan to purchase food or drink while attending an event at
`
`the sports stadium or arena. Respondents were drawn from an online panel provided by
`
`Lucid, a leading online sample provider.
`
`11.
`
`All respondents were exposed to both the test term TITLETOWN and the control term
`
`DREAMTOWN on a rotated basis. Respondents were randomly assigned to which term
`
`they were exposed to first. DREAMTOWN was selected as the control term because it
`
`has a similar construction to TITLETOWN and is broadly similar in meaning.
`
`12.
`
`This use of both a test term and a control term is a preferred survey methodology because
`
`there is a certain amount of error in any survey measurement that can be caused by
`
`sample error, guessing, the design of the study, or the construction of the questions asked.
`
`It is important to exclude these forms of error from the study results when assessing
`
`whether secondary meaning is present.
`
`3 However, 21 interviews were excluded from these tabulations due to their responses to the post-screening question
`(Q3).
`
`CONFIDENTIAL
`
`

`

`5
`
`13.
`
`Images of the exhibits used are shown below:
`
`Test Term
`
`Control Term
`
`14.
`
`Interviews were conducted with Wisconsin residents who are current and/or prospective
`
`visitors of a sports stadium or arena who also purchased or plan to purchase food or drink
`
`while attending an event at the sports stadium or arena. Based on information provided
`
`to me by counsel, age, gender and Wisconsin county quotas were established to represent
`
`consumers who are similar to those who purchase or use the Green Bay Packers’
`
`services.
`
`15.
`
`Respondents must have met all of the following criteria:
`
`a. Live in the state of Wisconsin.
`b. Must be 21 years of age or older.
`c. Must have visited a sports stadium or arena for an event in the past 12 months
`AND purchased food or drink when attending that event at the sports stadium or
`arena
`
`And/or
`
`CONFIDENTIAL
`
`

`

`6
`
`d. Must be “definitely,” “probably,” or “maybe” likely to visit a sports stadium or
`arena for an event in the coming 12 months AND think that they will purchase
`food or drink when attending that event at the sports stadium or arena.
`e. The respondent, or anyone in his/her household, must not work for a market
`research or advertising firm.
`f. Must be wearing his/her eyeglasses or contact lenses at the time of the interview
`if he/she usually wears them when reading material on a computer screen.
`
`16.
`
`Respondents were given the following introduction:
`
`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 take them out and put them on.
`
`NOTE: Please return to this survey from a personal computer or laptop if
`you are currently using a mobile device or tablet to access this survey.
`
`17.
`
`The specific screening questions proceeded as follows:
`
`S1a
`In what state do you live?
`(cid:129) <STATE DROP DOWN LIST>
`IF LIVES OUTSIDE OF WISCONSIN, TERMINATE. CHECK QUOTAS.
`
`S1b
`In what county do you live?
`(cid:129) <COUNTY DROP DOWN LIST>
`CHECK QUOTAS.
`
`S2
`What is your age?
`OPEN-END
`IF UNDER 21 YEARS OF AGE, TERMINATE. CHECK QUOTAS.
`
`S3
`
`What is your gender?
`(cid:129) Male
`(cid:129) Female
`CHECK QUOTAS.
`
`CONFIDENTIAL
`
`

`

`7
`
`S4a
`
`Thinking about the past 12 months, have you visited a sports stadium or arena for
`any kind of event?
`(cid:129) No
`(cid:129) Yes
`
`IF “YES” IN S4a, ASK:
`S4b Did you purchase any food or drink when you attended that event at the sports
`stadium or arena?
`(cid:129) No
`(cid:129) Yes
`
`S5a
`
`Thinking about the coming 12 months, how likely are you to visit a sports
`stadium or arena for any kind of event?
`(cid:129) Definitely
`(cid:129) Probably
`(cid:129) Maybe
`(cid:129) Probably Not
`(cid:129) Definitely Not
`
`IF “DEFINITELY,” “PROBABLY,” OR “MAYBE” IN S5a, ASK:
`S5b Do you think that you will purchase any food or drink when you attend that event
`at the sports stadium or arena?
`(cid:129) No
`(cid:129) Yes
`TERMINATE IF HAS NOT VISITED A SPORTS STADIUM/ARENA IN THE
`PAST 12 MONTHS AND DID NOT PURCHASE ANY FOOD/DRINK WHEN
`ATTENDED THAT EVENT;
`AND
`IS NOT “DEFINITELY,” “PROBABLY,” OR “MAYBE” LIKELY TO VISIT A
`SPORTS STADIUM/ARENA IN THE COMING 12 MONTHS AND DOES NOT
`PLAN TO PURCHASE ANY FOOD/DRINK WHEN ATTENDING THAT
`EVENT.
`
`CONFIDENTIAL
`
`

`

`8
`
`S6
`
`Do you, or does anyone in your household, work for any of the following?
`
`Yes
`No
`RANDOMIZE ROW ORDER.
`A market research or advertising firm
`(cid:129)
`(cid:129)
`A bank or financial services firm
`(cid:129)
`(cid:129)
`A hospital or healthcare provider
`(cid:129)
`(cid:129)
`TERMINATE IF “YES” TO “A MARKET RESEARCH OR ADVERTISING
`FIRM.”
`
`S7a Do you usually wear eyeglasses or contact lenses when reading material on a
`computer screen?
`No
`(cid:129)
`Yes
`(cid:129)
`IF “NO,” SKIP TO S8.
`
`IF “YES” IN S7a, ASK:
`S7b Will you please wear your eyeglasses or contact lenses for the remainder of the
`survey?
`(cid:129) No
`(cid:129) Yes
`IF “NO,” TERMINATE.
`
`S8
`
`For survey quality control purposes, please select the number 8.
`(cid:129) 10
`(cid:129) 9
`(cid:129) 8
`(cid:129) 7
`(cid:129) 6
`(cid:129) 5
`(cid:129) 4
`(cid:129) 3
`(cid:129) 2
`(cid:129) 1
`(cid:129) 0
`IF DOES NOT SELECT “8,” TERMINATE.
`
`CONFIDENTIAL
`
`

`

`9
`
`18.
`
`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.
`
`19.
`
`Respondents were then shown either the test term (TITLETOWN) or the control term
`
`(DREAMTOWN). All respondents saw both terms, on a rotated basis. Respondents were
`
`randomly assigned to which term was shown first. They were shown one of the terms
`
`and told:
`
`SHOW [TITLETOWN/DREAMTOWN] EXHIBIT.
`Please take a look at this. Click the arrow when you are done looking at it.
`LEAVE EXHIBIT ON SCREEN AT LEAST 3 SECONDS BEFORE THE
`ARROW APPEARS.
`
`20.
`
`Respondents were asked if they have seen or heard of the term TITLETOWN (or
`
`DREAMTOWN). If the respondent had not seen or heard of the term, they were not
`
`asked the follow-up questions about its meaning (Q1b-e). If the respondent had seen or
`
`heard of the term before, they were asked with whom or what they associate it. The order
`
`in which “who or what” or “what or who” was asked was rotated between respondents to
`
`eliminate any potential order bias. Similarly, in question 1c, the order in which “anyone
`
`or anything else” or “anything or anyone else” was asked was rotated between
`
`respondents to eliminate any potential order bias.
`
`CONFIDENTIAL
`
`

`

`10
`
`Q1a Have you seen or heard of the term <TITLETOWN/DREAMTOWN>?
`(cid:129) No
`(cid:129) Yes
`(cid:129) Don’t Know
`IF “NO” OR “DON’T KNOW,” SKIP TO Q2a.
`
`IF “YES” IN Q1a, ASK:
`Q1b
`<Who or what> / <What or who> (ROTATE ORDER BETWEEN
`RESPONDENTS) do you associate with the term <TITLETOWN/
`DREAMTOWN>?
`(cid:129) OPEN-END
`(cid:129) Nothing/Don’t Know
`IF GIVES A RESPONSE IN Q1b, CONTINUE WITH Q1c-e. IF “NOTHING/
`DON’T KNOW,” SKIP TO Q2a.
`
`Q1c
`
`<Anyone or anything else> / <Anything or anyone else> (SYNC WITH ORDER
`FROM Q1b) you associate with the term <TITLETOWN/ DREAMTOWN>?
`RECORD ONLY ONE RESPONSE AT A TIME.
`(cid:129) OPEN-END
`(cid:129) No Others
`
`21.
`
`Respondents were then asked what makes them associate their response to the prior
`
`question with the term TITLETOWN (or DREAMTOWN).
`
`ASK FOR EACH RESPONSE GIVEN IN Q1b-c:
`Q1d What makes you associate…<INSERT RESPONSE GIVEN IN Q1b-c> with
`the term <TITLETOWN/DREAMTOWN>? Any other reasons?
`You are not limited by the size of the answer box.
`(cid:129) OPEN-END
`(cid:129) Not Sure/Don’t Know
`
`CONFIDENTIAL
`
`

`

`11
`
`22.
`
`Finally, respondents were asked how long ago they believe that the term TITLETOWN
`
`(or DREAMTOWN) became associated with their response to the previous question.
`
`Q1e Approximately, how long ago do you believe that the term
`<TITLETOWN/DREAMTOWN> became associated with…< INSERT
`RESPONSE GIVEN IN Q1b-c>? Since what year or years?
`(cid:129) OPEN-END
`(cid:129) Not Sure/Don’t Know
`
`23.
`
`The same series of questions shown above in questions 1a-e was repeated in questions
`
`2a-e for the term not previously asked about.
`
`Post Screening
`
`24.
`
`After recording their beliefs about the exhibit terms they saw, respondents were asked the
`
`following post-screen question:
`
`Q3
`
`Do you, or does anyone in your household, work for any of the following?
`
`RANDOMIZE ROW ORDER.
`A professional sports team or league
`A sports stadium or arena
`A bar or restaurant
`
`No
`(cid:129)
`(cid:129)
`(cid:129)
`
`Yes
`(cid:129)
`(cid:129)
`(cid:129)
`
`25.
`
`If the respondent, or anyone in his/her household, worked for a professional sports team
`
`or league, a sports stadium or arena, or a bar or restaurant, they were disqualified from
`
`the study. This question was asked at the end of the survey, rather than at the beginning,
`
`in order to prevent any potential bias introduced by the question. A total of 21
`
`respondents were disqualified based on their responses to this question and are not
`
`included in these tabulations.
`
`CONFIDENTIAL
`
`

`

`12
`
`26.
`
`At the end of the survey, each respondent was asked if the survey represented a true and
`
`complete account of their responses. No one was disqualified based on his/her response
`
`to this question. All of the respondents who are included in this study responded
`
`affirmatively to this validation statement.
`
`VAL Please select which best describes how you feel about the validation statement
`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.
`(cid:129) I have read and AGREE with the above validation statement.
`(cid:129) I do NOT AGREE with the above validation statement.
`
`27.
`
`A copy of the questionnaire is attached to Appendix 2 of this Report. Copies of the
`
`exhibits used are attached to Appendix 3 of this Report.
`
`28.
`
`Interviewing was administered and supervised, under my direction, by Willow Research,
`
`LLC, a company that specializes in the administration of market research surveys.
`
`29.
`
`Based on the sample size of roughly 300 cases, the statistical error rate for the key
`
`measures in this study falls into the range of ±4.5% for a statistic such as 20% at the 95%
`
`confidence level. In other words, one would expect that 95 times out of 100, a
`
`measurement that was actually 20%, would accurately be represented in the data by a
`
`statistic as high as 24.5%, or as low as 15.5%.
`
`CONFIDENTIAL
`
`

`

`13
`
`30.
`
`This study was conducted using a double-blind technique where neither the company that
`
`administered the survey panel nor the respondents were aware of the purpose of the
`
`research or the identity of the party who commissioned it. The methodology, survey
`
`design, execution, and reporting were all conducted in accordance with generally
`
`accepted standards of objective procedure and survey technique.
`
`31.
`
`The work performed to design, carry out, and report this study is covered by a billing of
`
`$85,000. Additional time required for trial testimony or deposition will be billed at a rate
`
`of $7,000 per day, plus expenses. The compensation is in no way contingent on the
`
`outcome of this matter.
`
`CONFIDENTIAL
`
`

`

`14
`
`Results
`
`32. When asked if they had seen or heard of the term TITLETOWN, more than nine out of
`
`ten respondents (92%) report that they had. By contrast, when asked about the control
`
`term, just one in twenty respondents (6%) report that they had seen or heard of the term
`
`DREAMTOWN.
`
`Q1a Have you seen or heard of the term <TITLETOWN/DREAMTOWN>?
`
`ALL RESPONDENTS
`Yes
`No
`Don’t Know
`
`TEST
`Titletown
`(306)
`100%
`92%
`7
`*
`
`CONTROL
`Dreamtown
`(306)
`100%
`6%
`81
`13
`
`*0.5% or fewer mentions, but not zero.
`
`CONFIDENTIAL
`
`

`

`15
`
`33. When asked with whom or what they associate the term TITLETOWN, a substantial
`
`majority identify the Green Bay Packers (87%), with most specifically citing the Packers
`
`(86%), Lambeau Field (12%), a coach or a player (10%). By contrast, when asked with
`
`whom or what they associate the term DREAMTOWN, no one named the Green Bay
`
`Packers.
`
`<Who or what> / <What or who> (ROTATE ORDER BETWEEN
`RESPONDENTS) do you associate with the term <TITLETOWN/
`DREAMTOWN>?
`
`Q1b
`
`Q1c
`
`<Anyone or anything else> / <Anything or anyone else> (SYNC WITH ORDER
`FROM Q1b) you associate with the term <TITLETOWN/DREAMTOWN>?
`TEST
`CONTROL
`Titletown
`Dreamtown
`(306)
`(306)
`100%
`100%
`92%
`6%
`87
`--
`86
`--
`12
`--
`10
`--
`7
`--
`2
`--
`2
`--
`1
`--
`1
`--
`8
`--
`7
`--
`5
`--
`4
`--
`3
`--
`2
`*
`1
`--
`1
`--
`6
`5
`
`ALL RESPONDENTS4
`All Who Have Seen/Heard of the Term:
`Green Bay Packers (net):
`The Packers
`Lambeau Field/Packers Stadium
`Coaches/Players (net):
`Vince Lombardi
`Aaron Rodgers
`Brett Favre
`Green and Gold
`Titletown District
`City of Green Bay, WI
`Green Bay (unspec.)
`Brewery/Beer/Bar
`Titletown Brewery
`Football (unspec.)
`Restaurant/Food
`Wisconsin (not Green Bay)
`Winning Town/Winning
`Other**
`
`*0.5% or fewer mentions, but not zero.
`**1% or fewer mentions each.
`NOTE: Table may sum to more than total due to multiple mentions by some respondents.
`
`4 Codes in this table reflect responses across Q1b-d. Q1d was included in this analysis for clarification purposes.
`
`CONFIDENTIAL
`
`

`

`16
`
`34. When those who associate the term TITLETOWN with the Packers were asked to explain
`
`their reasons, respondents most frequently describe Super Bowl wins, titles, or
`
`championships won (41%).
`
`Q1d What makes you associate…<INSERT RESPONSE GIVEN IN Q1b-c> with
`the term <TITLETOWN/DREAMTOWN>? Any other reasons?
`
`ALL WHO ASSOCIATE TERM WITH THE PACKERS
`Super Bowl Wins/Titles/Championships Won
`Green Bay Packers
`City of Green Bay, WI
`That’s What They Call It/The Name/Nickname
`I Have Heard It Before/Live Here
`Lambeau Field/Where the Packers Play
`Vince Lombardi/Lombardi Trophy/Coach
`Football (unspec.)
`Other
`Not Sure/Don’t Know
`
`TEST
`Titletown
`(263)
`100%
`41%
`36
`25
`24
`12
`6
`6
`4
`2
`3
`
`*0.5% or fewer mentions, but not zero.
`NOTE: Table may sum to more than total due to multiple mentions by some respondents.
`
`CONFIDENTIAL
`
`

`

`17
`
`35.
`
`Among consumers who associate the term TITLETOWN with the Packers, two out of
`
`three respondents (66%) report the belief that the term became associated with the
`
`Packers during or before the 1960s. Moreover, roughly four out of five respondents
`
`(79%) describe a time period prior to 1996 when Titletown Brewing Company reportedly
`
`began operating.
`
`Q1e Approximately, how long ago do you believe that the term <TITLETOWN/
`DREAMTOWN> became associated with…< INSERT RESPONSE GIVEN
`IN Q1b-c>? Since what year or years?
`
`ALL WHO ASSOCIATE TERM WITH
`THE PACKERS
`During or Before 1960s (net):
`1960s
`Before 1960
`1970-1995
`1996-2016
`Forever/As Long As I Can Remember
`1990s
`Not Sure/Don’t Know
`
`TEST
`Titletown
`(263)
`100%
`66%
`52
`14
`13
`7
`5
`2
`7
`
`79%
`
`CONFIDENTIAL
`
`

`

`18
`
`Conclusions
`
`36.
`
`The term TITLETOWN is known to virtually the entire population (92%) of relevant
`
`consumers residing in Wisconsin, the geographic area where the parties primarily offer
`
`their goods and services.
`
`37.
`
`At the same time, most of those who are aware of the term TITLETOWN, associate it
`
`specifically with the Green Bay Packers (87%). This proportion remains the same when
`
`considering the number of respondents who associate the control term DREAMTOWN
`
`with the Green Bay Packers (0%).
`
`38.
`
`Among consumers who associate the term TITLETOWN with the Packers, most believe
`
`it to have been associated with the Packers since the 1960s (66%). Moreover, roughly
`
`four out of five respondents (79%) describe a time period prior to 1996 when Titletown
`
`Brewing Company reportedly began operating.
`
`39.
`
`In conclusion, based on the results of this study, it is my opinion that the term
`
`TITLETOWN has acquired secondary meaning among consumers residing within
`
`Wisconsin, the geographic area where the parties primarily offer their goods and services,
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`such that the primary significance of the term TITLETOWN is to identify the Green Bay
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`Packers. The term TITLETOWN is known to virtually everyone in the marketplace for
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`the class of goods described in the Green Bay Packers’ TITLETOWN trademark
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`registration. Further, TITLETOWN became specifically associated with the Packers
`
`CONFIDENTIAL
`
`

`

`19
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`around the 1960s and continues to enjoy a substantial level of association with the
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`Packers today.
`
`Pursuant to 28 U.S.C., Section 1740, I declare under penalty of perjury under the laws of the
`
`United States that the foregoing is true and correct.
`
`Executed on April 3, 2017 at Friday Harbor, Washington.
`
`________________________________________
`
`_____________________________________________ ____________________________________________
`Philip Johnson
`Philip Johnssssssssssssssssssssssononononnonononooooooooooooooooooo
`
`CONFIDENTIAL
`
`

`

`Appendix 1
`
`(cid:120)
`
`Philip Johnson Curriculum Vitae
`
`(cid:120) Recent Cases In Which Philip Johnson Has Testified
`
`CONFIDENTIAL
`
`

`

`
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`
`
`PHILIP JOHNSON
`
`CURRICULUM VITAE
`
`
`
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`Philip Johnson is the President of JJG Group, LLC, a company specializing in litigation-related
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`market research services. Until January 2014, Mr. Johnson was the Chief Executive Officer of Leo J.
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`Shapiro and Associates, Inc., a market research and consulting firm that conducts surveys.
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`
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`Mr. Johnson has designed and supervised hundreds of surveys measuring consumer behavior and
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`opinion, employing a wide range of research techniques. His area of expertise is in the use of survey
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`research as a tool in litigation, including jury selection and trademark disputes.
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`
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`Mr. Johnson has offered testimony regarding survey evidence on over eighty occasions in both
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`Federal and State courts. In addition, he has offered survey research in matters before the Federal
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`Trade Commission, The Food and Drug Administration, the Patent and Trademark Office, and the
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`Trademark Trial and Appeal Board. Mr. Johnson has designed, conducted, and reported survey
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`evidence on behalf of both plaintiffs and defendants in various cases. The topics covered in these
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`litigation related surveys include matters related to likelihood of confusion, secondary meaning,
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`genericness, dilution, false advertising, change of venue, and unfair competition.
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`
`
`Philip Johnson, JJG GROUP LLC, PO BOX 1909, FRIDAY HARBOR, WA 98250
`
`CONFIDENTIAL
`
`

`

`
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`2
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`Part of Mr. Johnson's training has been through working with Dr. Leo J. Shapiro, the Founder of Leo
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`J. Shapiro & Associates, L.L.C.; the late Dr. Philip M. Hauser, a former Director of the U. S. Census
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`Bureau; and the late Dr. Hans Zeisel, who made significant contributions in the application of social
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`science to the solution of legal questions.
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`
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`Mr. Johnson has given lectures before the American Bar Association (ABA) and the Practising Law
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`Institute (PLI) on the use of survey research in litigation. He is a member of the American Marketing
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`Association (AMA), the American Association for Public Opinion Research (AAPOR), and the
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`International Trademark Association (INTA).
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`
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`Mr. Johnson has a B.S. degree in Psychology from Loyola University and an M.B.A. degree from the
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`University of Chicago.
`
`CONFIDENTIAL
`
`

`

`
`
`RECENT CASES IN WHICH PHILIP JOHNSON HAS
`TESTIFIED OR OFFERED SURVEY EVIDENCE AT TRIAL...
`
`AUGUST 2016
`
`
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`
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`THE NAVAJO NATION, ET AL. v. URBAN OUTFITTERS, INC.,
`ET AL.
`United States District Court for the
`District of New Mexico
`
`Likelihood of Confusion
`
`In the Matter of CERTAIN FOOTWEAR PRODUCTS
`United States International Trade Commission
`Washington, DC
`
`Likelihood of Dilution and Confusion
`
`LUXCO, INC. v. CONSEJO REGULADOR DEL TEQUILA, A.C.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`Geographic Certification
`
`PODS ENTERPRISES, INC. v. U-HAUL INTERNATIONAL, INC.
`United States District Court for the
`Middle District of Florida (Tampa Division)
`
`Likelihood of Confusion
`
`BALANCE BAR COMPANY v. GFA BRANDS, INC.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`Likelihood of Confusion
`
`GLOBEFILL INCORPORATED v. ELEMENTS SPIRITS
`INCORPORATED AND KIM BRANDI
`United States District Court for the
`Central District of California
`
`Likelihood of Confusion
`
`MCDONALD’S CORPORATION v. MCSWEET, LLC
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`SHEETZ OF DELAWARE, INC. v. DOCTOR’S ASSOCIATES, INC.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`Genericness
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`AUGUST 2015
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`APRIL 2015
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`SEPTEMBER 2014
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`JULY 2014
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`NOVEMBER 2013
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`NOVEMBER 2013
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`SEPTEMBER 2013
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`Philip Johnson, JJG GROUP LLC, PO BOX 1909, FRIDAY HARBOR, WA 98250
`
`CONFIDENTIAL
`
`

`

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`JUNE 2013
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`2
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`KRAFT FOODS GROUP BRANDS LLC v. CRACKER BARREL
`OLD COUNTRY STORE, INC., CBOCS PROPERTIES, INC., AND
`JOHN DOES 1-10
`United States District Court for the
`Northern District of Illinois (Eastern Division)
`
`Likelihood of Confusion
`
`PROMARK BRANDS INC. v. GFA BRANDS, INC.
`United States Patent and Trademark Office Before the
`Trademark Trial and Appeal Board
`
`Likelihood of Confusion
`
`MOBILEMEDIA IDEAS LLC v. APPLE INC.
`United States District Court for the
`District of Delaware
`
`Patent Infringement
`
`MIXED CHICKS LLC v. SALLY BEAUTY SUPPLY LLC
`United States District Court for the
`Central District of California
`
`Likelihood of Confusion
`
`SAZERAC COMPANY, INC. v. FETZER VINEYARDS
`United States District Court for the
`Northern District of California
`
`H.J. HEINZ COMPANY v. BOULDER BRANDS USA, INC. formerly
`known as GFA BRANDS, INC.
`United States District Court for the
`Western District of Pennsylvania
`
`EDIBLE ARRANGEMENTS INTERNATIONAL, LLC and EDIBLE
`ARRANGEMENTS, LLC v. 1-800-FLOWERS.COM, INC. and JUNE
`V. DELANEY and DAVID DELANEY d/b/a FRUIT BOUQUETS
`STATEN ISLAND
`United States District Court for the
`District of Connecticut
`
`FERRING PHARMACEUTICALS INC. v. BRAINTREE
`LABORATORIES, INC.
`United States District Court for the
`District of Massachusetts
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`APRIL 2013
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`DECEMBER 2012
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`OCTOBER 2012
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`DEPOSITION TESTIMONY OF PHILIP JOHNSON
`THAT HAS NOT BEEN OFFERED AT TRIAL...
`
`DECEMBER 2016
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`DECEMBER 2016
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`JUNE 2016
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`MARCH 2016
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`CONFIDENTIAL
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`

`

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`3
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`TWENTIETH CENTURY FOX TELEVISION, a division of
`TWENTIETH CENTURY FOX FILM CORPORATION and FOX
`BROADCASTING COMPANY v. EMPIRE DISTRIBUTION, INC.
`United States District Court for the
`Central District of California (Western Division)
`
`LARGAN PRECISION CO., LTD. v. SAMSUNG ELECTRONICS CO.,
`LTD.; SAMSUNG ELECTRONICS AMERICA, INC.; and
`SAMSUNG TELECOMMUNICATIONS AMERICA, LLC
`United States District Court for the
`Southern District of California
`
`EXXON MOBIL CORPORATION v. FX NETWORKS, LLC,
`TWENTIETH CENTURY FOX FILM CORPORATION, TWENTY-
`FIRST CENTURY FOX, INC., AND FXX NETWORK, LLC
`United States District Court for the
`Southern District of Texas (Houston Division)
`
`TRUECAR, INC. v. SONIC AUTOMOTIVE, INC. AND SONIC
`DIVISIONAL OPERATIONS, LLC
`United States District Court for the
`Central District of California (Western Division)
`
`ORALABS, INC. v. THE KIND GROUP LLC
`United States District Court for the
`District of Colorado
`
`INDACON, INC. v. FACEBOOK, INC.
`United States District Court for the
`Western District of Texas (San Antonio Division)
`
`DISH NETWORK L.L.C. v. FUN DISH, INC., FUN DISH OF
`FLORIDA, INC., AND DISH 1 UP SATELLITE, INC.
`United States District Court for the
`Northern District of Ohio (Eastern Division)
`
`JEFFREY SORENSEN v. WD-40 COMPANY
`United States District Court for the
`Northern District of Illinois (Western Division)
`
`JACKSON FAMILY WINES, INC. AND LC TM HOLDINGS, LLC
`v. DIAGEO NORTH AMERICA, INC. AND DIAGEO CHATEAU &
`ESTATE WINES CO.
`United States District Court for the
`Northern District of California
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`DECEMBER 2015
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`AUGUST 2015
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`JUNE 2015
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`MAY 2015
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`SEPTEMBER 2014
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`AUGUST 2014
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`MAY 2014
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`OCTOBER 2013
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`SEPTEMBER 2013
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`CONFIDENTIAL
`
`

`

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`SEPTEMBER 2013
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`AUGUST 2013
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`MARCH 2013
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`MARCH 2013
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`FEBRUARY 2013
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`NOVEMBER 2012
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`NOVEMBER 2012
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`OCTOBER 2012
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`OCTOBER 2012
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`SEPTEMBER 2012
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`APRIL 2012
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`CONFIDENTIAL
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`4
`
`REMBRANDT SOCIAL MEDIA, LP v. FACEBOOK, INC. AND
`ADDTHIS, INC.
`United States District Court for the
`Eastern District of Virginia (Alexandria Division)
`
`MOBILEMEDIA IDEAS LLC v. RESEARCH IN MOTION
`LIMITED AND RESEARCH IN MOTION CORPORATION
`United States District Court for the
`Eastern District of Texas (Marshall Division)
`
`FAGE USA DAIRY INDUSTRY, INC., ET AL. v. GENERAL
`MILLS, INC., ET AL.
`United States District Court for the
`Northern District of New York
`
`GENERAL MILLS, INC. ET AL. v. FAGE USA DAIRY INDUSTRY,
`INC. ET AL.
`Unite