Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA849361 Filing date: 09/29/2017 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 92063295 Party Plaintiff Titletown Brewing Co., LLC Correspondence NICHOLAS A KEES Address GODFREY & KAHN SC 833 EAST MICHIGAN STREET, SUITE 1800 MILWAUKEE, WI 53202-5615 UNITED STATES Email: [email protected], [email protected], [email protected], [email protected], [email protected] Submission Other Motions/Papers Filer's Name Andrew C. Landsman Filer's email [email protected] Signature /Andrew C. Landsman/ Date 09/29/2017 Attachments Anderson Expert Rebuttal Report and Exhibits 5-3-17.pdf(1180364 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,
Petitioner, Cancellation No. 92063295 v.
GREEN BAY PACKERS, INC., Respondent.
Rebuttal Report of Dr. Justin R. Anderson in Response to the Report of Philip Johnson, “A Study of Secondary Meaning of the Term: Titletown”
Nicholas A. Kees Andrew C. Landsman GODFREY & KAHN, S.C. 833 East Michigan Street, Suite 1800 Milwaukee, WI 53202-5615 Telephone: 414-273-3500 Facsimile: 414-273-5198
Jennifer L. Gregor GODFREY & KAHN, S.C. One East Main Street, Suite 500 Madison, WI 53703 Telephone: 608-257-3911 Facsimile: 608-257-0609
Attorneys for Petitioner, Titletown Brewing Co., LLC
16501 Ventura Boulevard, Suite 601, Encino, CA 91436 • Phone (818) 464-2400 • www.mmrstrategy.com
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
In re Registration No. 4,593,153 Cancellation No: 92063295
TITLETOWN BREWING CO., LLC, Petitioner, v. GREEN BAY PACKERS, INC., Respondent
REBUTTAL REPORT OF DR. JUSTIN R. ANDERSON IN RESPONSE TO THE REPORT OF PHILIP JOHNSON, “A STUDY OF SECONDARY MEANING OF THE TERM: TITLETOWN”
Rebuttal Report of Dr. Justin R. Anderson Cancellation No: 92063295
TABLE OF CONTENTS
Summary of My Opinions ...... 1 Background of the Dispute ...... 4 Overview of the Johnson Survey ...... 4 Detailed Opinions Regarding the Johnson Survey ...... 6 I. The Johnson survey does not provide a valid measure of secondary meaning of TITLETOWN...... 7 II. The Johnson survey does not measure whether or when the Packers have used TITLETOWN as a trademark...... 23 Conclusions ...... 29 My Qualifications ...... 30 Materials Reviewed and Compensation...... 31
Exhibit 1: Incorrect Coding in Johnson Data Exhibit 2: Re-Analysis of Johnson Data Exhibit 3: Selected Responses to Question 1e in Johnson Survey Exhibit 4: Dr. Justin R. Anderson CV and Testimony Experience
Rebuttal Report of Dr. Justin R. Anderson Cancellation No: 92063295
1. I have been retained by the petitioner, Titletown Brewing Co., LLC (“Titletown Brewing”), in the above matter. Counsel for Titletown Brewing has asked me to evaluate the expert report1 of Philip Johnson and the survey he conducted, submitted in this matter by the respondent, Green Bay Packers, Inc. (the “Packers”). Specifically, I have been asked to address the following two questions regarding the Johnson survey: i. Does the Johnson survey provide a valid measure of the secondary meaning of the term TITLETOWN?
ii. Does the Johnson survey measure whether or when the Packers have used TITLETOWN as a trademark in connection with any goods or services? 2. This rebuttal report sets forth my opinions regarding these questions, developed in response to the Johnson report. I reserve the right to supplement this rebuttal report in the event that additional information becomes available to me.
Summary of My Opinions
3. Based on my review of Mr. Johnson’s report, my review of other materials identified in this report, and my experience, I believe that the survey conducted by Mr. Johnson does not provide a valid measure of the secondary meaning of TITLETOWN. The Johnson survey suffers from significant flaws, including the following: i. The survey questions are vague and biased, suggesting that respondents think
about the term TITLETOWN in the context of sports. I understand that many different types of businesses use the term TITLETOWN in their names. The
Johnson survey questions do not specify whether respondents should consider the term TITLETOWN in the context of any particular category of goods or services. Instead, the survey questions lead respondents to think of TITLETOWN in the context of a sports stadium or arena, which biases results in favor of the Packers.
1 Titled “A Study of Secondary Meaning of the Term: TITLETOWN,” dated April 3, 2017.
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ii. The survey does not measure secondary meaning. For a mark to have secondary meaning, it must have acquired distinctiveness by association with products or services from a single source.2 Thus, a secondary meaning survey should measure whether respondents use the mark to identify a single source. It is insufficient to demonstrate that a source is one of multiple sources that respondents associate with the mark.3 Yet, the Johnson survey has attempted to do the latter. By not measuring associations with a single source, the Johnson
survey fails to properly measure secondary meaning. iii. Respondents were not properly qualified for the relevant categories and geography. The Johnson survey qualified respondents as consumers of food and drinks at a sports stadium or arena, but that qualification is defined too narrowly, resulting in an under-inclusive universe. Not only does the survey fail to measure the right universe, its selection of respondents biases results in favor of a sports context, which favors the Packers. Furthermore, the survey improperly
restricts the universe to residents of Wisconsin. However, the relevant population is national, so the survey should include a national respondent universe. By restricting the survey to Wisconsin residents, the survey biases results in favor of the Packers.
iv. The control fails to account for “noise.” The DREAMTOWN control used in the
Johnson survey is not “broadly similar in meaning”4 to TITLETOWN. Instead, it is a dissimilar term that leads respondents in another direction, and fails to
measure any potential “noise” in the survey responses. Therefore, DREAMTOWN is an improper control.
2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Fourth Edition, updated March 2009, § 15:5. “Secondary meaning as buyer association of symbol with source,” p.1. 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Fourth Edition, updated March 2009, § 32:191. “Secondary meaning – Secondary meaning survey formats,” p.1. 4 Johnson report, paragraph 11.
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v. The analysis is biased and does not measure unique association. There are errors in the coding and analysis of the Johnson survey data, which inflate the reported
results in favor of the Packers. In addition to these errors, Mr. Johnson’s analysis incorrectly includes associations with multiple sources in his calculation of secondary meaning. A re-analysis of the survey data shows that, if his survey can provide a measure of secondary meaning despite its other serious flaws, then the level of secondary meaning identified by the Johnson survey is much lower
than the measure provided in the Johnson report.
4. It is also my opinion that Mr. Johnson’s survey does not measure whether or when the Packers have used TITLETOWN as a trademark in connection with any goods or services. i. The survey does not measure whether TITLETOWN was used by any party, or in
any category. “Use” can be observed in a company’s actions in the marketplace. The Johnson survey does not measure marketplace actions. Instead, the survey
measures associations “of the term TITLETOWN … in the minds of the relevant
consuming public.”5 Mr. Johnson provides no evidence that the consumer associations measured by his survey are equivalent to use of a mark. ii. The survey fails to properly measure when, if ever, the Packers first used
TITLETOWN for any particular goods or services, including those listed in the registration at issue. Instead, the survey asks6 respondents to indicate
approximately how long ago TITLETOWN became associated with the Packers or another association. Because consumer associations do not indicate use, the
survey fails to measure when the Packers may have first used TITLETOWN as a trademark. Additionally, Question 1e is confusing, and may encourage respondents to guess. The survey responses themselves indicate that respondents misunderstood the question.
5 Johnson report, paragraph 7. 6 Johnson survey, Question 1e.
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5. As I describe in this rebuttal report, there are serious flaws in the design and execution of the Johnson survey. These flaws cast doubt on the validity of the survey results and on the reliability of conclusions derived from the Johnson survey.
Background of the Dispute
6. I have the following understanding of the background of this dispute, based on the materials I have reviewed and discussions with counsel for Titletown Brewing.
7. I understand that Titletown Brewing has been continuously operating a restaurant and brew pub in Green Bay, Wisconsin, since 1996.7 8. As noted in the Petition for Cancellation, the trademark registration at issue is U.S.
Trademark Registration No. 4,593,153 (the “’153 registration”) for the mark TITLETOWN for, “Arena services, namely, providing facilities for sports, concerts, conventions and exhibitions; Hotel, bar and restaurant services.”8 The ‘153 registration indicates that the Packers claim that they first used TITLETOWN in June 2010.
9. Titletown Brewing seeks cancellation of the Packers’ ‘153 registration, as noted in the Petition for Cancellation.
Overview of the Johnson Survey
10. In his report, Mr. Johnson writes that this dispute involves “whether TITLETOWN has acquired secondary meaning among relevant consumers residing within Wisconsin,” and that he was retained to “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.”9
7 Petition, paragraph 2. 8 United States Patent and Trademark Office Reg. No. 4,593,153, issued August 26, 2014. (PACKERS00001301) 9 Johnson report, paragraph 7.
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11. In his report, Mr. Johnson indicates that 306 respondents recruited from an online research panel provided by Lucid completed the survey between December 9 and 22, 2016.10 12. Upon beginning the survey, respondents were asked screening questions to determine whether they qualify for the survey. To qualify for the survey, respondents had to meet criteria that included the following: i. Live in the state of Wisconsin (Question S1a), ii. Be at least 21 years old (Question S2),
iii. Have purchased food or drink while attending an event at a sports stadium or arena within the past 12 months (Questions S4a and S4b) and/or think they will purchase food or drink while attending an event at a sports stadium or arena within the coming 12 months (Questions S5a and S5b), iv. Not be employed by a market research or advertising firm (Question S6), or by a professional sports team or league, sports stadium or arena, or bar or restaurant (Question 3).
13. Mr. Johnson also imposed quotas, or limits on the number of respondents in the survey, based on the county in which they live (Question S1b), their age (Question S2), and their gender (Question S3). 14. Respondents who qualified for the survey were then shown both the mark at issue, TITLETOWN, and a control mark, DREAMTOWN. 15. After seeing each mark, respondents were asked whether they had seen or heard of the term (Question 1a and 2a). Respondents who answered “Yes” were asked to report who or what they associate with the mark (Questions 1b and 1c, and 2b and 2c). For each association they mentioned, respondents were asked what made them say that (Questions 1d and 2d).
10 Johnson report, paragraph 10.
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16. For each association they mentioned, respondents were also asked to report approximately how long ago they believe the term became associated with the association they mentioned (Questions 1e and 2e). 17. Mr. Johnson reported that, according to his survey, 92% of all respondents had seen or heard of TITLETOWN,11 and that 87% of all respondents associate TITLETOWN with the Green Bay Packers, or related associations including Lambeau Field, Packers coaches or players, “Green and Gold,” or “Titletown District.”12 18. In contrast, Mr. Johnson reported that 6% of all respondents had seen or heard of DREAMTOWN,13 and that none (0%) of the respondents associate DREAMTOWN with the Green Bay Packers, or related associations.14 19. Mr. Johnson also reported that, among those respondents who associate the term TITLETOWN with the Packers, 66% of them believe that TITLETOWN became associated with the Packers during the 1960s or before, and 79% believe that association began prior to 1996.15
Detailed Opinions Regarding the Johnson Survey
20. It is my opinion that the survey provided by Mr. Johnson does not provide a valid measure of the secondary meaning of TITLETOWN. Furthermore, the Johnson survey does not measure whether or when the Packers have used TITLETOWN as a trademark. 21. As detailed in Sections I and II below, there are serious flaws in the design and execution of the Johnson survey, which cast doubt on the validity of the survey results and on the reliability of conclusions derived from the Johnson survey.
11 Johnson report, paragraph 32. 12 Johnson report, table on page 15. 13 Johnson report, paragraph 32. 14 Johnson report, table on page 15. 15 Johnson report, paragraph 35.
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I. The Johnson survey does not provide a valid measure of secondary meaning of TITLETOWN.
A. The Johnson survey questions are vague and biased, suggesting that respondents think about the term TITLETOWN in the context of sports.
22. In the ’153 registration, the Packers claim a trademark for TITLETOWN for “Arena services, namely, providing facilities for sports, concerts, conventions and exhibitions; Hotel,
bar and restaurant services.” 16 However, the Johnson survey questions make no mention of the specific services claimed in the ’153 registration. Instead, the survey suggests to respondents that they should think about the term TITLETOWN as it may be related to sports. 23. When measuring associations with TITLETOWN, the Johnson survey asked respondents the following questions.17
i. “Have you seen or heard of the term TITLETOWN?” (Question 1a) ii. “Who or what do you associate with the term TITLETOWN?” (Question 1b) iii. “Anyone or anything else you associate with the term TITLETOWN?” (Question 1c)
24. The survey questions used to measure associations with TITLETOWN are vague. They do not provide any context in which respondents should think about the term TITLETOWN. In particular, the questions do not place TITLETOWN in the context of arena, hotel, or bar and restaurant services, which are the focus of the dispute in this matter.
16 United States Patent and Trademark Office Reg. No. 4,593,153, issued August 26, 2014. (PACKERS00001301) 17 Johnson report, Appendix 2, pages 4-5.
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25. Because these questions are vague and lack context with regard to category, respondents may think of many associations with TITLETOWN. As noted in the Petition, there are multiple businesses and organizations in Green Bay, Wisconsin, that use TITLETOWN in their name.18 It is my understanding that some of these include Titletown Manufacturing,19 Titletown Publishing,20 Titletown Select,21 and the Titletown Train Show,22 among others. With so many different types of businesses and organizations in Green Bay, Wisconsin, using the term TITLETOWN, respondents may not have understood the context in which the survey asked them to associate TITLETOWN. 26. Because the questions failed to specify the context or categories of goods or services at issue, respondents may have assumed the association questions were related to the product or service category they had been asked about in previous questions. Questions S4a and S5a asked specifically whether respondents had visited (Question S4a), or are likely to visit
(Question S5a), a “sports stadium or arena.” Therefore, respondents trying to place TITLETOWN in context may have assumed that Questions 1a through 1c were asking for associations in the context of sports stadiums or arenas, or sports generally. 27. Questions S4b and S5b ask about food and drink, but only food and drink purchased at a sports stadium or arena. Respondents may thus be more likely to associate food or drink purchased at such venues to be associated with what the Packers’ website for Lambeau Field refers to as “concession booths, kiosks, and vendors,”23 as opposed to bar or restaurant services of the kind that Titletown Brewing Company provides.
18 Petition, paragraph 28. 19 Titletown Manufacturing website: www.titletownmfg.com, accessed May 3, 2017. 20 Titletown Publishing website: www.titletownpublishing.com, accessed April 21, 2017. 21 Titletown Select website: www.titletownselectbaseball.com, accessed April 21, 2017. 22 Titletown Train Show website: www.ttsgbllc.com, accessed April 21, 2017. 23 Packers website: http://www.packers.com/gameday/lambeau-field-a-to-z-guide.html, accessed April 25, 2017.
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28. Mr. Johnson acknowledges that the screening questions may bias the association measures. After asking the questions to measure association with TITLETOWN, the survey asked Question 3, “Do you, or does anyone in your household, work for any of the following?” Items included “A professional sports team or league,” “A sports stadium or arena,” and “A bar or restaurant.”24 29. Mr. Johnson explains that he asked Question 3 after measuring associations “in order to prevent any potential bias introduced by the question.”25 Thus, Mr. Johnson makes clear that asking about sports stadiums or arenas in the screening questions can bias respondents’ associations with TITLETOWN. 30. The association questions are vague and lack context, and the screening questions may bias respondents to think of TITLETOWN in the context of sports. These are serious flaws in the Johnson survey.
B. The survey does not measure secondary meaning.
31. In his report, Mr. Johnson writes that this dispute involves “whether TITLETOWN has acquired secondary meaning among relevant consumers residing within Wisconsin.”26 He also titled his report, “A Study of Secondary Meaning of the Term: TITLETOWN.” However, the Johnson survey does not measure secondary meaning, and the results reported in the Johnson report do not indicate whether TITLETOWN has acquired secondary meaning.
24 Johnson report, Appendix 2, page 6. 25 Johnson report, paragraph 25. 26 Johnson report, paragraph 7.
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32. Secondary meaning is “a mental association in buyers’ minds between the alleged mark and a single source of the product.”27 As such, “a survey should reveal that survey respondents use the designation or trade dress to identify a single source, not that the party seeking trademark rights is listed as the first among several sources with which respondents associate the designation or trade dress.”28 33. Secondary meaning surveys typically ask respondents whether they associate a particular mark with the products or services of one, or more than one, source. For example, the survey may ask, “Do you associate [claimed trademark] with the [product identification] of one, or more than one, company?”29 34. Many secondary meaning surveys use this type of question to measure association with a single source – even if that source is anonymous, or unknown to the respondent.30 However, the Johnson survey never asked respondents any question like this commonly accepted question. Therefore, the Johnson survey failed to measure whether respondents associate TITLETOWN with one or more than one source, and failed to ask about associations with
TITLETOWN in the context of any particular category of goods or services. 35. Mr. Johnson has previously used the commonly accepted method of measuring secondary meaning. For example, in Farm Fleet Supplies, Inc. v. Blain Supply, Inc. Opposition No. 91196469, Mr. Johnson conducted a secondary meaning survey in which he asked respondents “whether the term is owned or operated by one or more than one company.”31
27 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Fourth Edition, updated March 2009, § 15:5. “Secondary meaning as buyer association of symbol with source,” p.1. 28 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Fourth Edition, updated March 2009, § 32:191. “Secondary meaning – Secondary meaning survey formats,” p.1. 29 Vincent N. Palladino, “Secondary Meaning Surveys,” in Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys: Law Science and Design, American Bar Association: Section of Intellectual Property Law, 2012, p. 85. 30 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Fourth Edition, updated March 2009, § 15:1. “Introduction to secondary meaning,” p.1. 31 See Farm Fleet Supplies, Inc. v. Blain Supply, Inc., Opposition No. 91196469, Final Decision at 31, 2013 WL 4635992 at *9 (T.T.A.B. Aug. 13, 2013).
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36. In that matter, Mr. Johnson relied on that question to support his opinion that FARM &
FLEET had secondary meaning. In that matter, he wrote, “a majority of consumers believe FARM & FLEET is owned or operated by a single source (59%), which indicates that this name has acquired secondary meaning in its market area,” and “the primary significance of the term FARM & FLEET is to identify a store that comes from a single source.”32 37. Given that the “one or more than one” question format is commonly accepted, and that the TTAB previously accepted a secondary meaning survey in which Mr. Johnson asked this type of question, it is unclear why Mr. Johnson’s survey in this matter did not adopt this common question format. 38. Instead, the Johnson survey in this matter attempted to measure secondary meaning by asking respondents who had seen or heard of the term TITLETOWN, in any context, “Who or what do you associate with the term TITLETOWN?” (Question 1b). This question differs from the typical secondary meaning question format in several ways. 39. First, Question 1b fails to ask whether respondents associate the term TITLETOWN with one or more than one source, which is the question typically asked to measure secondary meaning. 40. Second, Question 1b is vague, as it fails to specify the context of which goods or services are at issue. I understand the term TITLETOWN is used in many business names in a variety of industries, but the Johnson survey fails to identify which category or categories respondents should consider. 41. Third, Question 1b fails to allow for anonymous secondary meaning, in which a respondent may associate the mark with only one source, but is unable to recall the name of that source.
32 See Farm Fleet Supplies, Inc. v. Blain Supply, Inc., Opposition No. 91196469, Final Decision at 32-33, 2013 WL 4635992 at *9 (T.T.A.B. Aug. 13, 2013).
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42. The Johnson survey does not measure secondary meaning with the commonly accepted
“one or more than one source” format. Instead, it asks “who or what do you associate” with TITLETOWN, which suffers from multiple flaws. Therefore, the Johnson survey does not provide a valid or reliable measure of whether TITLETOWN has secondary meaning.
C. Respondents were not properly qualified for the relevant category and geography.
43. Respondents in the Johnson survey were not qualified based on the proper criteria.
Despite the focus in this proceeding on the services identified in the ’153 registration, the Johnson survey qualified respondents as Wisconsin residents who are consumers of food or drink at a sports stadium or arena. 44. In conducting a survey to measure secondary meaning, it is important to ensure that respondents are representative of the relevant population. As Professor McCarthy has noted,
“Selection of the proper universe is a crucial step, for even if the proper questions are asked in a proper manner, if the wrong persons are asked, the results are likely to be irrelevant.”33 45. One particularly relevant category of services in this proceeding is bar and restaurant services. However, the Johnson survey fails to qualify respondents as consumers of bar or restaurant services. In fact, the only reference to bars or restaurants in the survey is Question 3, which disqualifies potential respondents who work for a bar or restaurant, or another sensitive industry. Nowhere does the survey ensure that respondents are consumers of bars or restaurants. 46. Questions S4b and S5b ask respondents whether they have purchased (Question S4b) or think they will purchase (Question S5b) food or drink at a sports stadium or arena. However, that is not the same as patronizing a bar or restaurant. As indicated previously, the Packers’
33 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Fourth Edition, updated March 2009, § 32:159. “Relevant ‘universe’ surveyed—Defining the universe,” p.1.
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website for Lambeau Field refers to “concession booths, kiosks, and vendors.”34 The website also advertises a “Miller Lite Deck,” but that is not referred to as a bar. Mr. Johnson has not provided evidence that purchasing food or drink at a sports stadium or arena is equivalent to patronizing a bar or restaurant. As a result, the Johnson survey fails to ensure the survey universe is valid. 47. At best, the Johnson survey universe is under-inclusive regarding category, because
“concession booths, kiosks, and vendors” at sports stadiums or arenas are only a subset of bars and restaurants. In that case, the Johnson survey universe is biased in favor of respondents who may be more likely than the typical bar or restaurant consumer to associate TITLETOWN with a sports team, such as the Packers. 48. Qualifying respondents as visiting a sports stadium or arena is also problematic because the ‘153 registration is not limited to sports. In the registration, arena services include “concerts, conventions, and exhibitions.”35 Even though the Johnson survey asks respondents if they have visited a sports stadium or arena (Question S4a), and how likely they are to visit a sports stadium or arena (Question S5a), “for any kind of event,” the questions ask specifically about “sports” stadiums or arenas. In contrast, the registration refers to “arena services” which may include “sports, concerts, conventions, and exhibitions.” Because the Johnson survey universe is limited only to respondents who visit “sports” stadiums or arenas, they may be more likely than the typical “arena” consumer to associate TITLETOWN with a sports team, such as the Packers.
34 Packers website: http://www.packers.com/gameday/lambeau-field-a-to-z-guide.html, accessed April 25, 2017. 35 United States Patent and Trademark Office Registration No. 4,593,153, August 26, 2014. (PACKERS00001301). The ‘153 registration also includes hotel services. However, it is my understanding that the Packers have conceded this service category, and it is no longer part of this dispute.
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49. In addition to being improperly qualified for the relevant category, respondents in the Johnson survey were also not properly qualified for the relevant geography. As I understand, rights granted by a federal trademark registration are nationwide in scope. Therefore, a survey universe measuring whether a trademark has secondary meaning should represent the relevant national consumer population for that trademark.
50. In this case, there does not seem to be any reason to justify the Johnson survey’s requirement that respondents must live in Wisconsin. On the contrary, there is evidence that many people from outside Wisconsin visit Green Bay, Wisconsin, and Lambeau Field, in particular. However, despite the fact that Mr. Johnson reviewed information from the Packers that indicates the market extends beyond Wisconsin,36 the Johnson survey is limited only to residents of Wisconsin. This makes the survey under-inclusive based on geography, and may bias results in favor of the Packers. 51. According to market information provided by the Packers, many of the people who attend Packers home football games at Lambeau Field reside outside Wisconsin. According to information provided by the Packers, which Mr. Johnson reviewed, in 2015, the number of attendees from outside Wisconsin was 20% on game days, 22% on Family Night, and 36% during training camp.37 In 2011, 37% of visitors to the Atrium were not Wisconsin residents.38 52. It is my understanding that the Packers are a team with a national, perhaps international, fan base. According to information I have found through Internet searches, 73% of Packers fans live outside Wisconsin,39 and the team has season ticket holders in all 50 states.40 Even some of the Packers shareholders live outside Wisconsin, and visit Lambeau Field for
36 Johnson report, paragraph 9. 37 PACKERS00003699. 38 PACKERS00003882. 39 Don Walker, “Green Bay Scores With Economic Impact of Packers in Playoffs,” Milwaukee Journal Sentinel, January 5, 2015; and Kendra Meinert, “How Lambeau Comes Alive on Packers Game Day,” Green Bay Press Gazette, December 6, 2014. 40 Greater Green Bay Convention & Visitors Bureau website: https://www.greenbay.com/things-to- do/green-bay-packers, accessed April 26, 2017.
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shareholder meetings.41 Restricting the survey universe to respondents who live in Wisconsin fails to represent the population of consumers who visit Green Bay, Wisconsin, in general, and Lambeau Field, in particular. 53. Additionally, not only Packers fans visit Lambeau Field. Some of those in attendance may be fans of the opposing team. Some of these may include fans of the Packers’ division rivals, the Chicago Bears, Detroit Lions, and Minnesota Vikings. All three teams are located in cities within reasonable driving distance for the team’s hometown fans to attend games at Lambeau Field. However, it is not obvious that fans of other teams would associate the disputed term, TITLETOWN, with the Packers.
54. The TTAB has previously criticized Mr. Johnson for “selection of a subset of applicant’s ‘in market’ consumers” based on geography. In Farm Fleet Supplies, Inc. v. Blain Supply, Inc.,42 Mr. Johnson conducted a survey among respondents who lived within 12 miles of a Blain’s Farm & Fleet store. The TTAB expressed “concern with the survey,” namely that “the attempt to select consumers living within 12 miles of one of applicant’s stores may have skewed the results.”43 55. Since he has previously been criticized by the TTAB for surveying a geographically narrow universe, it is unclear why Mr. Johnson restricted his survey universe in this matter to a geographic subset of the relevant population. 56. Limiting the survey universe to Wisconsin residents seems to bias results in favor of the Packers. Such bias would likely exist at any time of the year. However, the Johnson survey was conducted between December 9 and 22, 2016. During December, 2016, the Packers played three of their four games at home in Green Bay.44 Furthermore, at the time, the Packers
41 Mary Beth Quirk, “What’s It Like To Be An NFL Owner? Ask The Green Bay Packers Shareholders,” Consumerist, September 10, 2015. 42 TTAB Opposition No. 91196469, August 13, 2013. 43 TTAB Opposition No. 91196469, page 48, August 13, 2013. 44 Packers website: http://www.packers.com/news-and-events/article-press-release/article-1/Packers- announce-2016-schedule/6caea757-8e0e-4591-b031-712c3346172b, April 26, 2017.
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were embroiled in a competition against the Detroit Lions to win their division and earn a spot in the playoffs.45 Those factors, individually and combined, make it likely that respondents may have been subjected to a great deal of Packers “buzz” during the time the survey was conducted. Such exposure would reasonably increase the likelihood that Wisconsin residents would associate TITLETOWN with the Packers. 57. There is reason to believe that a survey including a nationwide universe of respondents may have found results less favorable to the Packers in this matter. Green Bay, Wisconsin, is not the only city in the country to claim the nickname “titletown” based on the success of a sports team. Other cities that claim to be “titletown” include Aledo, Texas,46 Boston, Massachusetts,47 and Valdosta, Georgia,48 among others. 58. Additionally, there are a number of businesses and organizations outside Wisconsin that use the name “Titletown,” in some form. Some of these include Title Town Apparel,49 in or around Boston, Massachusetts; Title Town Partners,50 in Tarpon Springs, Florida; Title Town Settlements,51 in Rockville, Maryland, and Washington, D.C.; Title Town Titans,52 and the
Titletown Showcase,53 in Valdosta, GA; and Titletown Gator Club,54 in Gainesville, Florida.
45 Ryan Wood, “Packers Rise to 6th seed in NFC playoff race,” www.packersnews.com, December 19, 2016; Vinnie Iver, “NFL playoff picture: Packers force NFC North title game with Lions,” www.sportingnews.com, December 24, 2016; Michael David Smith, “NFC playoff picture: Packers remain in the race,” profootballtalk.nbcsports.com, November 29, 2016. 46 Jared L. Christopher and Jessica Koscielniak, “Titletown, TX, episode 1: The Aledo Way,” www.star- telegram.com, accessed April 21, 2017. 47 “Beantown is TitleTown,” www.espn.com, April 19, 2017; Herald Staff, “Title Town,” www.bostonherald.com, accessed April 19, 2017. 48 “Valdosta, Ga., is TitleTown USA,” www.espn.com, accessed April 19, 2017. 49 www.titletownapparel.com, accessed April 21, 2017. 50 www.titletownpartners.com, accessed April 21, 2017. 51 www.titletownsettlements.com, accessed April 21, 2017. 52 www.hometeamsonline.com, accessed April 21, 2017. 53 www.vstatefootballcamps.com, accessed April 21, 2017. 54 www.titletowngc.com, accessed April 21, 2017.
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59. It is reasonable to believe that consumers who reside outside Wisconsin may have different associations with TITLETOWN than the associations of Wisconsin residents reported in the Johnson survey. By limiting the survey universe to only Wisconsin residents, the Johnson survey results are likely skewed in favor of the Packers. 60. Respondents in the Johnson survey are not properly qualified for the relevant service categories. Furthermore, the survey universe is limited to Wisconsin residents, making the universe geographically under-inclusive of the relevant population. These improper category and geographic qualifications are serious flaws in the Johnson survey.
D. The control fails to account for “noise.”
61. It is my understanding that the meaning of “TITLE-” in the disputed mark TITLETOWN connotes a meaning related to sports and winning championship titles. The DREAMTOWN control used in the Johnson survey does not connote a similar meaning.
Therefore, the DREAMTOWN control is invalid, and fails to measure “noise” associated with TITLETOWN.
62. A survey control is used to measure the amount of “noise” that may be present in a survey measure. “Noise” refers to a phenomenon in which some survey respondents may provide responses that are unrelated to the stimulus being tested. Instead, responses may be based on other factors, such as preexisting beliefs, acquiescence bias,55 guessing, and other factors.56 A control is an alternative stimulus that is presented to respondents, which is intended to detect the amount of noise in the survey measure. This noise can then be subtracted from the gross measure of the stimulus being tested to calculate a “net” measure for the survey.
55 Acquiescence bias is the potential tendency of some respondents to provide positive, agreeable, or affirmative answers. This is sometimes referred to as “yea-saying.” 56 Shari Seidman Diamond, “Control Foundations: Rationales and Approaches,” in Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys: Law Science and Design, American Bar Association: Section of Intellectual Property Law, 2012.
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63. To ensure that the control is accounting for noise not associated with the element under dispute, a proper survey control should be as similar as possible to the disputed element or elements, without sharing any of the disputed characteristics.57 In the case of a survey measuring secondary meaning of a disputed trademark, a control should be as similar as possible to the mark being tested, without using any of the disputed traits of the mark.
64. A control should not “artificially depress … responses by leading the respondent in another direction.” 58 Thus, in a survey measuring whether a disputed term has secondary meaning, a control term that has little similarity with the disputed mark would not be a valid control. 65. The term tested in the Johnson survey is TITLETOWN. Mr. Johnson used the term
DREAMTOWN as a control. In his report, Mr. Johnson wrote, “DREAMTOWN was selected as the control term because it has a similar construction to TITLETOWN and is broadly similar in meaning.”59 With that statement, Mr. Johnson acknowledges that a valid control term should share a similar meaning as the disputed term. DREAMTOWN does not share a similar meaning with TITLETOWN, and therefore fails the criterion for a valid control.
66. Internet searches60 for the word “title” indicate a number of synonyms, including “championship,” “crown,” “first place,” “high status,” “laurels,” and “trophy.” None of these searches indicated that “dream” is a synonym for “title.”
57 Shari Seidman Diamond, “Control Foundations: Rationales and Approaches,” in Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys: Law Science and Design, American Bar Association: Section of Intellectual Property Law, 2012, p. 210. 58 Shari Seidman Diamond, “Control Foundations: Rationales and Approaches,” in Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys: Law Science and Design, American Bar Association: Section of Intellectual Property Law, 2012, p. 212. 59 Johnson report, paragraph 11. 60 At websites including www.collinsdictionary.com, www.google.com, www.merriam-webster.com, and www.synonym.com, accessed April 19, 2017.
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67. Conversely, Internet searches on the same websites for the word “dream” indicate synonyms including “ambition,” “aspiration,” “daze,” “delusion,” “fantasy,” “goal,” “hallucination,” “hope,” “idea,” “reverie,” and “trance,” among others. None of these searches indicated that “title” is a synonym for “dream.” 68. In fact, some of the synonyms for “dream” seem to connote the opposite of a “title.” A team may have an “ambition” or “aspiration” to win a title, or “delusion” or “hallucination” of winning a championship, because it has not done so yet. The contrast may be illustrated by this example: For 108 years, winning the World Series was only a “dream” for Chicago Cubs fans, until the team finally won the “title” in 2016. 69. In this survey, there may be “noise” in the Johnson survey results. Here, “noise” refers to the situation in which some respondents to the Johnson survey may have mentioned the Packers not because they associate the team with TITLETOWN, but rather for some other reason, such as pre-existing beliefs, acquiescence bias, or guessing.61 Because the control term does not connote a meaning related to championship titles, or sports in general, respondents would be unlikely to associate the control with the Packers. Therefore, it fails to capture the
“noise” of respondents thinking of the Packers for reasons other than associations with TITLETOWN, making DREAMTOWN an improper control.
70. Despite Mr. Johnson’s assertion,62 the control term DREAMTOWN is not “broadly similar in meaning” to TITLETOWN. Instead, it is a dissimilar term that leads respondents in another direction. Therefore, it fails Mr. Johnson’s criterion for a valid control. Because it cannot measure “noise” related to the survey responses, DREAMTOWN is an improper control.
61 Shari Seidman Diamond, “Control Foundations: Rationales and Approaches,” in Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys: Law Science and Design, American Bar Association: Section of Intellectual Property Law, 2012. 62 Johnson report, paragraph 11.
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E. The analysis is biased and does not measure unique association.
71. The analysis of the Johnson survey data is biased in favor of the Packers. Furthermore, the analysis does not provide a measure of unique association, which is required for measuring secondary meaning. These are serious flaws in the analysis of the Johnson survey data. 72. In the Johnson survey, Questions 1b and 1c asked respondents who or what they associate with TITLETOWN. Respondents answered these questions in their own words. Those responses were then assigned numeric codes, which were tabulated and provided in the
Johnson report.63 73. The codes assigned to the responses are biased in favor of the Packers. The codes that were assigned to these responses are provided with the Johnson survey data.64 These codes include “City of Green Bay, WI” (Code 01), “The Packers” (Code 02), “Green Bay (unspec.)”65 (Code 03), and others. Some of the codes assigned to the survey responses are incorrect. Exhibit 1 provides a list of survey responses that were coded incorrectly, as well as the correct codes that should have been assigned instead.
74. As shown in Exhibit 1, some of the survey responses indicating the city of Green Bay,
Wisconsin, were incorrectly assigned code 02 for “The Packers.” The following are examples of these incorrectly coded responses:
i. BATES 001866: “green bay wi.” ii. BATES 0106: “Green Bay wisconsin.” iii. BATES 0196: “GREEN BAY, WI IS KNOWN AS SUCH.” iv. BATES 0211: “Green Bay, WI.”
v. BATES 0221: “Green Bay, Wisconsin.” vi. BATES 0228: “Green Bay, WI.”
63 Johnson report, page 33. 64 PACKERS00006189. 65 The abbreviation “unspec.” means unspecified. 66 The Johnson survey database identifies respondents according to these BATES numbers.
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75. Each of these responses clearly refers to the city of Green Bay, Wisconsin. However, each of these was assigned code 02, indicating “The Packers.” The respondents who provided the responses listed above did not provide any other responses that Mr. Johnson classified as referring to the Packers.67 Yet, Mr. Johnson incorrectly classified these responses as referring to the Packers. 76. Other responses not referring to the Packers were also incorrectly coded as indicating the Packers, including the following:
i. BATES 0023: “Winning” and “Winners.” ii. BATES 0077: “the town where a team won a Title.” iii. BATES 0127: “Green Bay, WI” and “Home of the Green Bay Packers.” iv. BATES 0213: “Greenbay Wisconsin,” “NFL,” and “good times at football games.” 77. The incorrect coding of these responses inflated the association of TITLETOWN with the Packers that Mr. Johnson provided in his report.
78. In addition to Mr. Johnson’s incorrect and biased coding, Mr. Johnson’s analysis of the coded responses is also inaccurate, and does not provide a measure of secondary meaning. As stated previously, a mark has obtained secondary meaning when it has acquired distinctiveness with a single source.68 Mr. Johnson’s survey allowed respondents to identify multiple sources associated with TITLETOWN, and his analysis includes all associations that respondents mentioned. Therefore, even when respondents indicated that they associate TITLETOWN with more than one source, Mr. Johnson included those associations in his reported measure.
67 These respondents also did not provide any responses referring to Packers coaches or players, Lambeau Field, or any other associations related to the Packers. 68 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, Fourth Edition, updated March 2009, § 15:5. “Secondary meaning as buyer association of symbol with source,” p.1.
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79. In contrast, a measure of secondary meaning should be based on only those responses that indicate association with a single source. Exhibit 2 provides a revised analysis of the Johnson survey data. The exhibit indicates the codes I assigned to each response, and identifies which respondents associate TITLETOWN with only one source, and whether that single source is the Packers. 80. In re-analyzing the Johnson survey data, I have identified associations with the Packers in two ways. In one analysis, I included only those responses that mentioned the Green Bay
Packers (code 02 in Johnson’s survey data). In a second analysis, I included responses that mentioned the Green Bay Packers (code 02), as well as responses that mentioned Lambeau
Field (code 04), Packers coaches (code 09) or players (codes 08 and 10), “Green and Gold” (code 12), and the Titletown District (code 17). 81. It is important to note that this re-analysis is performed on the responses collected from the Johnson survey. As I have argued, the survey has serious flaws, and the re-analyzed results still suffer from those same flaws. With that caveat, the results of my re-analysis are provided in Table 1. Table 1: Summary of Associations of TITLETOWN with the Packers Associations of TITLETOWN with only … Respondents Percent Sample size 306 100.0% Green Bay Packers 66 21.6% Green Bay Packers / Lambeau Field / Packers coaches 93 30.4% or players / “Green and Gold” / Titletown District
82. As shown in Table 1, 21.6% of respondents in the Johnson survey indicated that they associate TITLETOWN only with the Green Bay Packers, referring only to the team or organization, and not with any other source. If associations such as Lambeau Field, Packers coaches or players, “Green and Gold,” and Titletown District are also included as indications of the Packers, then 30.4% of respondents associate TITLETOWN only with the Packers, and not with any other source.
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83. Each of these re-analyzed measures is much lower than the association measure provided in the Johnson report. Furthermore, these numbers are gross measures of
respondents’ association of TITLETOWN with a single source, without accounting for survey noise. If a proper control had been included in the survey, the “noise” detected by the control would be subtracted from these gross measures, and may yield even lower “net”69 results. 84. It is my understanding that a net secondary meaning measure of 21.6% or lower70 would typically indicate a lack of secondary meaning. Furthermore, I understand that a net
secondary meaning measure of 30.4% or lower would typically indicate a lack of secondary meaning, or at best, a marginal level of secondary meaning.71 85. The coding applied to responses in the Johnson survey is inaccurate and biased in favor of the Packers. Furthermore, Mr. Johnson included all associations with TITLETOWN in his measure, even if respondents indicated that they associate the term with more than one source. As a result, the Johnson report does not provide a valid measure of secondary meaning.
II. The Johnson survey does not measure whether or when the Packers have used TITLETOWN as a trademark.
A. The survey does not measure use of TITLETOWN by any party or in any category.
86. The Johnson report indicates that the survey measures associations “of the term TITLETOWN … in the minds of the relevant consuming public.”72 Associations are links between concepts stored as nodes in memory.73 For example, a concept such as Nike may be stored as a node in the memories of consumers who are aware of the brand. That memory node
69 A “net” measure is calculated as the gross measure minus the control “noise.” 70 This gross measure might be lower after subtracting the level of “noise” measured by a proper control. 71 Gerald L. Ford, “Survey Percentages in Lanham Act Matters,” in Shari Seidman Diamond and Jerre B. Swann, Trademark and Deceptive Advertising Surveys: Law Science and Design, American Bar Association: Section of Intellectual Property Law, 2012, pp. 316-317. 72 Johnson report, paragraph 7. 73 Jay D. Lindquist, and M. Joseph Sirgy, Shopper, Buyer, and Consumer Behavior: Theory, Marketing Applications, and Public Policy Implications, Fourth Edition, Cengage Learning, 2009, p.226.
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may have links to other concepts, such as shoes, athletic wear, Oregon, overseas manufacturing, or the myriad of celebrity athletes who endorse Nike products.
87. Mr. Johnson’s survey seeks to identify what mental associations, or links, may exist for the TITLETOWN node in consumer’s memories. However, consumers’ mental associations, as measured in the Johnson survey, do not provide evidence of marketplace use of a mark.
“Use” can be observed in a company’s marketplace actions. Mr. Johnson’s survey does not measure such actions, and he provides no evidence that the consumer associations measured by his survey are equivalent to use of a mark. 88. First, even if a mark has been used in commerce, a consumer may not have mental associations for that use. The consumer may not have encountered the mark, may not have paid attention to the mark when they encountered it, or may have forgotten their encounter with the mark. In any of these scenarios, the mental associations of a respondent in the Johnson survey would fail to indicate marketplace use of a mark that has actually been used in commerce.
89. Responses to Question 1a in the Johnson survey provide evidence that consumers’ mental associations may not reflect use of the mark. Multiple companies and organizations use the term TITLETOWN to offer a variety of products and services. Despite these actual uses in commerce, 8% of respondents in the Johnson survey reported they had neither seen nor heard of the term TITLETOWN.74 Thus, consumers’ mental associations may not accurately represent actual marketplace use of a mark. 90. Second, even if a mark has not been used in commerce, a consumer may mistakenly recall mental associations for use that never occurred. For example, the following responses to Questions 1b and 1c may indicate such false memories.75
74 According to the Johnson report, 92% of respondents indicated they had seen or heard of the term TITLETOWN (page 14). 75 See Exhibit 2.
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i. BATES 0020: “lakes.” ii. BATES 0156: “NFL hall of fame, Cooperstown.” iii. BATES 0208: “Madison, WI.” iv. BATES 0219: “Chicago.” 91. To my knowledge, “lakes” are not referred to as TITLETOWN in any commercial use. Similarly, I have found no evidence that either Madison or Chicago is referred to as TITLETOWN in a commercial context. Respondent 0156 exhibits three memory errors: the respondent believes that 1) the “NFL hall of fame” 2) is located in Cooperstown and 3) is associated with TITLETOWN. In reality, 1) the “Pro Football Hall of Fame,” its correct name, 2) is located in Canton, Ohio, and 3) does not appear to refer to itself as TITLETOWN in a commercial context.76 92. Furthermore, as previously indicated, the Johnson survey questions fail to specify a context for associations with TITLETOWN. Therefore, even if the mental associations that respondents reported in the Johnson survey were somehow indicative of actual marketplace use of TITLETOWN by the Packers, those responses do not indicate that the Packers had used TITLETOWN for arena, bar, or restaurant services.
93. As demonstrated by evidence sourced from the Johnson survey itself, consumers’ mental associations may fail to indicate commercial use of a mark, or may incorrectly indicate commercial use that has not occurred. Both phenomena are reasons why a survey of mental association is not indicative of a party’s actual use of a mark in a commercial context.
76 Pro Football Hall of Fame website: www.profootballhof.com, accessed May 2, 2017.
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B. The survey fails to properly measure when, if ever, the Packers used TITLETOWN for any particular goods or services, including those listed in the registration at issue.
94. Having failed to measure whether the Packers have ever used TITLETOWN in any commercial context, the survey also fails to measure when, if ever, such use may have occurred. Nevertheless, the Johnson survey attempts to identify the year that associations of TITLETOWN with the Packers may have begun. 95. Question 1e asks respondents to indicate approximately how long ago TITLETOWN became associated with the Packers, or with someone or something else. However, Question 1e is flawed for several reasons. 96. First, Question 1e is confusing. Questions 1a, 1b, 1c, and 1d all ask respondents about their own mental associations. Question 1a asks respondents if they have seen or heard of the term TITLETOWN. Questions 1b and 1c ask respondents who or what they associate with TITLETOWN. Question 1d asks respondents the reasons for their associations. In these questions, the focus is consistently on the respondents and their own associations.
97. Question 1e, however, does not ask when the respondents first formed their own associations of TITLETOWN with the Packers. Instead, the question shifts the focus away from the respondents’ own personal associations, and directs the focus onto an objective time or year when TITLETOWN first became associated with the Packers, in a broader sense. The Johnson survey makes this shift without informing respondents to change the focus of their answers. 98. It is not clear that respondents understood they were no longer being asked about their own associations. On the contrary, responses to the Johnson survey indicate that some respondents answered Question 1e from the perspective of their own associations, as they had done in the four preceding questions. As shown in Exhibit 3, the following examples indicate that some respondents answered Question 1e in relation to their own associations:
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i. BATES 0065: “When I was around 9 or 10 years old.” ii. BATES 0075: “not sure but I think I first heard it in the 90's.” iii. BATES 0134: “As far back as I can remember - 1965.” iv. BATES 0135: “As long as I remember Titletown always referred to the Green Bay Packers.” v. BATES 0156: “All my life, so at least 32 years” and “I've hear that within the past 12 months.”
vi. BATES 0157: “Since 2000, when I was old enough to understand more about the packers and their history.” vii. BATES 0181: “Since birth.” 99. Second, Question 1e may encourage respondents to guess. The question asks respondents to provide an answer they may not know. Because the question shifts focus from the respondents’ own mental associations to an external, objective year or time, respondents may not know the answer. Some respondents acknowledged this. The Johnson report indicates that 7% of respondents who associate TITLETOWN with the Packers do not know when that association began.77 100. However, other respondents may have wished to provide an answer, even though they weren’t sure of the answer. The question may have encouraged guessing. In fact, some respondents indicated that their answer was a guess. As shown in Exhibit 3, the following examples indicate that some respondents provided a guess in response to Question 1e:
i. BATES 0008: “Since the 1950's?”
ii. BATES 0014: “Not sure, but think about 50 years ago.” iii. BATES 0030: “Probably about 30.” iv. BATES 0051: “Not sure, but could be since about the 1930's.” v. BATES 0058: “I do not know. Since the 70s.”
77 Johnson report, page 17.
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vi. BATES 0084: “I am not sure but I would say back when Bart Starr was the quarterback of the Green Bay Packers back in the 1950s.” vii. BATES 0086: “Maybe the 1960's.” viii. BATES 0120: “I think maybe 1965.” ix. BATES 0130: “no idea, 60 years or so.” x. BATES 0163: “not sure, maybe 10 yrs.?” xi. BATES 0170: “Not sure, possible in the early 1960s.”
xii. BATES 0215: “I would guess over 20, but I do not know for sure.” xiii. BATES 0279: “Maybe 20 years ago. Probably a long time.” xiv. BATES 0283: “Not sure. 30-40 years ago?” 101. Although each of these responses may indicate a guess, none was classified as “Other” (Code 098) or “Not Sure/Don’t Know” (Code 000) in the Johnson survey data. Therefore, even though these respondents seem to be indicating they don’t really know, and may be guessing, Mr. Johnson treats these responses as certain and reliable.
102. At least one respondent provided a clear indication that Question 1e is confusing.
Respondent BATES 0165 answered the question with the response, “I dont understand this question.” 103. Because the survey fails to measure whether the Packers have used TITLETOWN in commerce, the survey also fails to measure when, if ever, such use may have occurred. Furthermore, Question 1e is confusing, and may encourage respondents to guess. Therefore, the Johnson survey does not provide a reliable measure of when, if ever, the Packers first used
TITLETOWN as a trademark. 104. Furthermore, the Johnson survey questions fail to specify a context for associations with TITLETOWN. Therefore, even if the mental associations that respondents reported in the Johnson survey were somehow indicative of marketplace use of TITLETOWN by the Packers, those responses do not indicate that the Packers have used TITLETOWN for arena, hotel, bar, or restaurant services, or when such use may have begun.
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105. Because, as previously stated, consumer associations do not indicate use, the survey fails to measure when the Packers may have first used TITLETOWN as a trademark. Additionally, Question 1e is confusing, and may encourage respondents to guess. Responses indicate that respondents misunderstood the question.
Conclusions
106. The Johnson survey does not provide a valid measure of the secondary meaning of
TITLETOWN. In that regard, Mr. Johnson’s survey suffers from significant flaws, including the following: i. The survey questions are vague and biased, suggesting that respondents think about the term TITLETOWN in the context of sports. ii. The survey does not measure secondary meaning. iii. Respondents were not properly qualified for the relevant category and geography.
iv. The control fails to account for “noise.” v. The analysis is biased and does not measure unique association. 107. Additionally, the Johnson survey does not measure whether or when the Packers have used TITLETOWN as a trademark in connection with any goods or services. i. The survey does not measure whether TITLETOWN was used by any party, or in any category. ii. The survey fails to properly measure when, if ever, the Packers first used TITLETOWN for any particular goods or services, including those listed in the
registration at issue. 108. These are serious flaws in the design and execution of the Johnson survey, which cast doubt on the validity of the survey results and on the reliability of conclusions derived from the Johnson survey.
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My Qualifications
109. I am a Vice President with MMR Strategy Group (“MMR”), a marketing research and consulting firm founded in 1974. I have personally designed and conducted hundreds of surveys about a variety of topics, including surveys measuring secondary meaning, likelihood of confusion, genericness, fame, dilution, false or deceptive advertising, patent and copyright infringement, and other topics. 110. I have earned a Doctorate of Philosophy (PhD) in Business Administration with a concentration in Marketing from the University of Southern California. My doctoral studies included training in survey research methods, statistics, and marketing, among other topics. I also earned a Master of Business Administration (MBA) with a concentration in Marketing from the University of Illinois at Urbana-Champaign, and a Bachelor of Science in Atmospheric
Science from the University of Wisconsin – Madison. 111. I have taught graduate (MBA) and undergraduate courses in marketing research, consumer behavior, and marketing strategy as a Marketing professor at the University of North
Carolina Wilmington and at California State Polytechnic University, Pomona, and as a Marketing instructor at the University of Southern California. The courses I taught in marketing research emphasized survey research methods. 112. I have presented my research at conferences of the American Marketing Association and delivered other invited presentations at universities. In October, 2015, I was a panelist at a
Continuing Legal Education seminar, titled “Using Surveys in Intellectual Property Matters,” sponsored by the Bar Association of San Francisco.
113. I serve on the editorial board of the Journal of Brand Strategy, and serve as a reviewer for the Journal of Brand Strategy, the Journal of Brand Management, and Arts and the Market (formerly Arts Marketing). I have previously served as a reviewer for Marketing Science.
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114. I am a member of the American Marketing Association, the Insights Association (a merger of the former Marketing Research Association and the former Council of American Survey Research Organizations), the Brand Activation Association, the Association of National Advertisers, and the International Trademark Association. I serve as a member of the Non- Traditional Marks Committee of the International Trademark Association. 115. I previously worked as a Research Director at Lieberman Research Worldwide, and as a Senior Research Analyst at BBDO Chicago. In both of those positions, I designed and conducted surveys for a variety of clients in diverse industries. I have also served as a meteorological officer in the United States Air Force. 116. Exhibit 4 provides my curriculum vitae, including all publications in the past ten years, as well as my testimony experience during the past four years.
Materials Reviewed and Compensation
117. For this rebuttal report, I have reviewed the following materials:
i. Documents filed in this matter, including the Petition for Cancellation, dated March 10, 2016; and the Response and Affirmative Defenses to Petition for Cancellation, dated June 22, 2016. ii. The Expert Report of Philip Johnson, A Study of Secondary Meaning of the Term: TITLETOWN, dated April 3, 2017. iii. United States Patent and Trademark Office Reg. No. 4,593,153, dated August 26, 2014. (PACKERS00001301)
iv. Lambeau Field Redevelopment: Explanation of Titletown Presented to the NFL, dated November 11, 2002. (PACKERS00002056-2065) v. Green Bay Packers Research, dated May 3, 2016. (PACKERS00003698-3708) vi. Green Bay Packers Market Report, dated March 2011. (PACKERS00003709- 3738) vii. 2011 NFL Ticketholder Benchmark Study. (PACKERS00003769-3820)
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viii. Green Bay Packers 2011–Present Overall Atrium Market Research Recap. (PACKERS00003867-3883) ix. Green Bay Packers Market Report, dated May, 2014. (PACKERS00003917- 3953) x. Green Bay Packers Gameday Research Results. (PACKERS00005869)
xi. The results of Internet searches for keywords including “TITLETOWN,” “title,” and other terms.
xii. The results of Internet searches for topics including the geographic origin of attendees of Green Bay Packers home football games and other topics. 118. In addition, I consulted published literature and cases relevant to the issues and theories in this matter, the most relevant of which are cited in this report. I also rely on my knowledge in fields such as surveys, consumer behavior, and marketing. 119. MMR has billed $25,000 for the work involved in providing this rebuttal report. After the production of this rebuttal report, MMR bills my time in this matter at $550 per hour, except for testimony at deposition or trial, which is billed at $5,000 per day. MMR’s compensation is not dependent upon the outcome of this matter.
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I declare under penalty of perjury under the laws of California that the foregoing is true and correct to the best of my belief.
Executed in Encino, California, on May 3, 2017.
______
Dr. Justin R. Anderson
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Exhibit 1: Incorrect Coding in Johnson Data
Incorrect Coding in Johnson Data
1. In the Johnson survey, Questions 1b and 1c asked respondents who or what they associate with TITLETOWN. Respondents answered those questions in their own words. Those responses were then assigned numeric codes, which were tabulated and provided in the Johnson report1. 2. The codes that were assigned to these responses are provided with the Johnson survey data2, and are listed in the table below:
Codes assigned to Johnson survey responses Code Response Theme 01 City of Green Bay, WI 02 The Packers 03 Green Bay (unspec.3) 04 Lambeau Field / Packers Stadium 05 Brewery / Beer / Bar 06 Titletown Brewery 07 Winning Town / Winning 08 Aaron Rodgers 09 Vince Lombardi 10 Brett Favre 11 Football (unspec.) 12 Green ad Gold 13 Wisconsin (not Green Bay) 14 Chicago 16 Restaurant / Food 17 Titletown District 98 Other 00 Nothing / Don’t Know
1 Johnson report, page 33. 2 PACKERS00006189. 3 Unspecified.
Exhibit 1 – Anderson Expert Rebuttal Report Page 1
3. The following pages provide responses for Questions 1b and 1c for all respondents whose responses were incorrectly classified in the Johnson survey data. 4. For each respondent, the following pages provide the following: i. BATES: the numbers Mr. Johnson used to identify each respondent. ii. Q1b: responses to Question 1b, as provided in the Johnson survey data. iii. Johnson Q1b CODE: the code assigned to the response in Q1b, as indicated in the Johnson survey data.
iv. Revised Q1b CODE_1: the code I assigned to the response in Q1b. v. Revised Q1b CODE_2: the second code I assigned to the response in Q1b, if the response indicated multiple response themes. vi. Q1c First Mention: responses to the first response in Question 1c, as provided in the Johnson survey data. vii. Johnson Q1c First Mention CODE: the code assigned to the first response in Q1c, as indicated in the Johnson survey data.
viii. Revised Q1c First Mention CODE: the code I assigned to the response in Q1c. ix. Q1c Second Mention: responses to the second response in Question 1c, as provided in the Johnson survey data. x. Johnson Q1c Second Mention CODE: the code assigned to the second response in Q1c, as indicated in the Johnson survey data. xi. Revised Q1c Second Mention CODE_1: the code I assigned to the second response in Q1c.
xii. Revised Q1c Second Mention CODE_1: the second code I assigned to the second response in Q1c, if the response indicated multiple response themes.
Exhibit 1 – Anderson Expert Rebuttal Report Page 2 Incorrect Coding in Johnson Data
Johnson Q1b Revised Q1b Revised Q1b BATES Q1b CODE CODE_1 CODE_2 0002 Green Bay 02 03 0004 Green Bay Packers 02 02 0006 Green Bay 02 03 0008 Green Bay 03 03 0011 green bay wisconsin 02 01 0014 Green Bay, WI 02 01 0016 Green bay packers 02 02 0017 green bay 02 03 0018 green bay wi 02 01 0021 Lambeau Field 04 04 0022 The Green Bay Packers 02 02 0023 The town of the team that wins 07 07 98 0024 Green Bay Packers 02 02 0027 Green Bay 02 03 0030 Green Bay Packers 02 02 0033 Green Bay 02 03 0041 Green Bay, WI 01 01 0043 packers 02 02 0044 Green Bay 02 03 0045 Green Bay Packers 02 02 0048 Green Bay 02 03 0051 Green Bay, WI 02 01 0056 Green Bay 02 03 0058 Green Bay 02 03 0059 Greenbay 02 03 0061 Green Bay 02 03 0066 Green Bay 02 03 0068 Green Bay Packers 02 02 0070 Green Bay Packers 02 02 0075 greenbay 02 03 0077 the town where a team won a Title 02 98 07 0080 GreenBay Wisconsin 02 01 0082 Green Bay, WI 02 01 0084 The Green Bay Packers 02 02 0087 greenbay 02 03 0100 Green Bay 02 03 0103 Green Bay 02 03
Exhibit 1 - Anderson Expert Rebuttal Report Page 1 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c First Mention First Mention BATES Q1c First Mention CODE CODE 0002 Green Bay Packers 02 02 0004 Wisconsin 13 13 0006 Green Bay Packers 02 02 0008 Packers 02 02 0011 green bay packers 02 02 0014 Packers 02 02 0016 Vince lombardi 09 09 0017
Exhibit 1 - Anderson Expert Rebuttal Report Page 2 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c Revised Q1c Second Mention Second Mention Second Mention BATES Q1c Second Mention CODE CODE_1 CODE_2 0002 Curly lambeau 04 09 0004 Football 02 11 0006
Exhibit 1 - Anderson Expert Rebuttal Report Page 3 Incorrect Coding in Johnson Data
Johnson Q1b Revised Q1b Revised Q1b BATES Q1b CODE CODE_1 CODE_2 0106 Green Bay wisconsin 02 01 0107 Green Bay 02 03 0108 Green Bay, Wisconsin 02 01 0109 Green Bay and the Packers 02 03 02 0110 Green Bay 02 03 0112 Green Bay 02 03 0113 Green Bay, WI 02 01 0116 green bay and the packers 02 03 02 0118 Green Bay, WI 02 01 0121 City of Green Bay 02 01 0126 green bay packers 02 02 0127 Green Bay, WI 02 01 0129 Green Bay 02 03 0130 Green Bay Packers 02 02 0136 Green Bay 02 03 0139 Green Bay Packers 02 02 0144 Green Bay Packers 02 02 0147 green bay packers 02 02 0148 Green Bay and the Green Bay Packers 02 03 02 0149 Green Bay and Green Bay Packers 02 03 02 0150 green bay wi 02 01 0155 Green Bay, WI 02 01 0157 Green Bay Packers! 02 02 0158 GREEN BAY AND THE GREEN BAY PACKERS 02 03 02 0166 green bay 02 03 0167 Green Bay Packers 02 02 0170 Green Bay and the Green Bay Packers NFL team 02 03 02 0171 Green Bay, Wisconsin. Green Bay Packers 02 01 02 0175 Green Bay, Wisconsin 02 01 0176 Green bay wi green bay packers 02 01 02 0178 Green Bay Wisconsin 02 01 0183 Green Bay Packers Green Bay, WI 02 02 01 0189 Green Bay, WI 02 01 0193 Green Bay Packers 02 02
0196 GREEN BAY, WI IS KNOWN AS SUCH 02 01 0203 lambeau 04 04
Exhibit 1 - Anderson Expert Rebuttal Report Page 4 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c First Mention First Mention BATES Q1c First Mention CODE CODE 0106
0196
Exhibit 1 - Anderson Expert Rebuttal Report Page 5 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c Revised Q1c Second Mention Second Mention Second Mention BATES Q1c Second Mention CODE CODE_1 CODE_2 0106 0107
Exhibit 1 - Anderson Expert Rebuttal Report Page 6 Incorrect Coding in Johnson Data
Johnson Q1b Revised Q1b Revised Q1b BATES Q1b CODE CODE_1 CODE_2 0206 green bay packers 02 02 0207 Green Bay Packers 02 02 0208 A college city that wins tournaments. 98 98 07 0209 Green Bay 02 03 0210 green bay 02 03 0211 Green Bay, WI 02 01 0212 GREEN BAY, WI 02 01 0213 Greenbay wisconsin 02 01 0214 green bay 02 03 0218 Green Bay 02 03 0220 green bay wi 02 01 0221 Green Bay, Wisconsin 02 01 0226 Green Bay Packers 02 02 0227 Packers 02 02 0228 Green Bay, WI 02 01 0231 green bay wisconsin 02 01 0233 The city of Green Bay Wisconsin home of the Green Bay Packers 02 01
0234 Green Bay 02 03 0236 GreenBay 02 03 0241 Green Bay 03 03 0246 Green Bay 02 03 0247 greenbay packers 02 02 0250 Green Bay Wisconsin home of the Green Bay Packers 02 01 0254 green bay 02 03 0255 Green Bay and the Green Bay Packers 02 03 02 0259 Green Bay Wisconsin.Home of the Green Bay Packers 02 01 0264 Green Bay 02 03 0265 Green Bay and the Packers 02 03 02 0267 green bay 02 03 0268 GREENBAY 02 03 0272 green bay packers 02 02 0278 Green Bay Packers 02 02 0280 Green Bay Packers Football 02 02
0285 Green Bay Packers 02 02
Exhibit 1 - Anderson Expert Rebuttal Report Page 7 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c First Mention First Mention BATES Q1c First Mention CODE CODE 0206 the town of green bay, wi 01 01 0207 Lambeau Field 04 04 0208 It refers to a specific city and is not an adjective 98 98 0209 Packers 02 02 0210
0234 Football 02 02 0236
0285 Green Bay 02 03
Exhibit 1 - Anderson Expert Rebuttal Report Page 8 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c Revised Q1c Second Mention Second Mention Second Mention BATES Q1c Second Mention CODE CODE_1 CODE_2 0206 bart starr 02 08 0207 Green Bay, Wisconsin 02 01 0208 Madison, WI 13 98 0209
0234 Packers 02 02 0236 0241
0285 Superbowl 02 98
Exhibit 1 - Anderson Expert Rebuttal Report Page 9 Incorrect Coding in Johnson Data
Johnson Q1b Revised Q1b Revised Q1b BATES Q1b CODE CODE_1 CODE_2 0291 lambau field 04 04 0295 green bay 02 03 0299 Green Bay 02 03 0300 Green Bay Packers 02 02 0301 Home of the Green Bay Packers; Green Bay, Wisconsin 02 01 0302 Green Bay 02 03 0303 green bay 02 03 0306 green bay 02 03
Exhibit 1 - Anderson Expert Rebuttal Report Page 10 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c First Mention First Mention BATES Q1c First Mention CODE CODE 0291 Greenbay 02 03 0295
Exhibit 1 - Anderson Expert Rebuttal Report Page 11 Incorrect Coding in Johnson Data
Johnson Q1c Revised Q1c Revised Q1c Second Mention Second Mention Second Mention BATES Q1c Second Mention CODE CODE_1 CODE_2 0291 peolpe 98 98 0295 0299 Vince Lombardi 09 09 0300 lombardi 09 09 0301
Exhibit 1 - Anderson Expert Rebuttal Report Page 12
Exhibit 2: Re-Analysis of Johnson Data
Re-Analysis of Johnson Data
1. As explained in my report, I re-analyzed the responses to Questions 1b and 1c from the Johnson survey. The purpose of this re-analysis is to measure the percentage of respondents who reported an association of TITLETOWN with only one source. 2. For this analysis, I used the codes listed in the table below:
Codes assigned to Johnson survey responses Code Response Theme 01 City of Green Bay, WI 02 The Packers 03 Green Bay (unspec.1) 04 Lambeau Field / Packers Stadium 05 Brewery / Beer / Bar 06 Titletown Brewery 07 Winning Town / Winning 08 Aaron Rodgers / Bart Starr 09 Vince Lombardi / Curly Lambeau 10 Brett Favre 11 Football (unspec.) 12 Green ad Gold 13 Wisconsin (not Green Bay) 14 Chicago 16 Restaurant / Food 17 Titletown District 98 Other 00 Nothing / Don’t Know
3. Most of these codes are the same as the codes that Mr. Johnson used. However, I made two changes to address responses Mr. Johnson incorrectly coded.
1 Unspecified.
Exhibit 2 – Anderson Expert Rebuttal Report Page 1
i. I classified responses of “Bart Starr” as code 08. It is my understanding that Bart Starr was a Packers quarterback, like Aaron Rodgers.
ii. I classified responses of “Curly Lambeau” as code 09. It is my understanding that Curly Lambeau was a Packers coach, like Vince Lombardi. 4. Exhibit 2 of this rebuttal report indicates the codes that Mr. Johnson assigned incorrectly, and the revised codes that I assigned to each response in Question 1b and 1c. For respondents not listed in Exhibit 2, I made no changes to the coding provided by Mr. Johnson.
5. The following pages provide responses for Questions 1b and 1c for all respondents in the Johnson survey data, with the codes Mr. Johnson assigned, or the revised codes I assigned. 6. The following pages also provide two additional columns. One of these columns indicates, for each respondent, whether the responses to Questions 1b and 1c indicate an association with the Packers (Code 02), and no other source. The other column indicates, for each respondent, whether the responses to Question 1b and 1c indicate associations with the Packers (Code 02), Lambeau Field (Code 04), Aaron Rodgers or Bart Starr (Code 08), Vince
Lombardi or Curly Lambeau (Code 09), Brett Favre (Code 10), “Green and Gold” (Code 12), and/or Titletown District (Code 17), and no other source. 7. For each respondent, the following pages provide the following: i. BATES: the numbers Mr. Johnson used to identify each respondent. ii. Q1b: responses to Question 1b, as provided in the Johnson survey data. iii. Revised Q1b CODE_1: the code assigned by Mr. Johnson, or the revised code I assigned to the response in Q1b.
iv. Revised Q1b CODE_2: the second code I assigned to the response in Q1b, if the response indicated multiple response themes. v. Q1c First Mention: responses to the first response in Question 1c, as provided in the Johnson survey data. vi. Revised Q1c First Mention CODE: the code assigned by Mr. Johnson, or the revised code I assigned to the response in Q1c.
Exhibit 2 – Anderson Expert Rebuttal Report Page 2
vii. Q1c Second Mention: responses to the second response in Question 1c, as provided in the Johnson survey data. viii. Revised Q1c Second Mention CODE_1: the code assigned by Mr. Johnson, or the revised code I assigned to the second response in Q1c. ix. Revised Q1c Second Mention CODE_1: the second code I assigned to the second response in Q1c, if the response indicated multiple response themes. x. Code 02 Only: an indication whether the responses to Questions 1b and 1c
indicate an association with the Packers (Code 02), and no other source. A “1” identifies respondents whose responses indicate an association with the Packers
(Code 02), and no other source. A “0” identifies all other respondents. xi. Code 02 or 04 or 08 or 09 or 10 or 12 or 17 Only: an indication whether the responses to Questions 1b and 1c indicate an association with with the Packers (Code 02), Lambeau Field (Code 04), Aaron Rodgers or Bart Starr (Code 08),
Vince Lombardi or Curly Lambeau (Code 09), Brett Favre (Code 10), “Green
and Gold” (Code 12), and/or Titletown District (Code 17), and no other source. A “1” identifies respondents who responses indicate an association with one or more of these sources, and no other sources. A “0” identifies all other respondents.
Exhibit 2 – Anderson Expert Rebuttal Report Page 3 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0001 Green Bay Packers 02 A new hotel/entertainment facility being built. 17
0002 Green Bay 03 Green Bay Packers 02 0003 Lambeau 04 Green Bay 03 0004 Green Bay Packers 02 Wisconsin 13 0005 0006 Green Bay 03 Green Bay Packers 02 0007 0008 Green Bay 03 Packers 02 0009 GREEN BAY PACKERS 02
Exhibit 2 - Anderson Expert Rebuttal Report Page 1 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0001
0002 Curly lambeau 09 0 0 0003 PAckers 02 0 0 0004 Football 11 0 0 0005 0 0 0006
Exhibit 2 - Anderson Expert Rebuttal Report Page 2 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0036 The Green Bay Packers 02 Arron Rodgers 08 0037 Football 02 Arena 98 0038 packers 02
Exhibit 2 - Anderson Expert Rebuttal Report Page 3 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0036
Exhibit 2 - Anderson Expert Rebuttal Report Page 4 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0072 0073 Green Bay Packers 02
0099 The Green Bay Packers 02 Greatness 98 0100 Green Bay 03 The Packers 02 0101
Exhibit 2 - Anderson Expert Rebuttal Report Page 5 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0072 0 0 0073 1 1 0074
0099 Packers 02 0 0 0100 Lambeau Field 04 0 0 0101 0 0 0102 1 1 0103 Wisconsin 13 0 0 0104
Exhibit 2 - Anderson Expert Rebuttal Report Page 6 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0107 Green Bay 03 Brewery 05 0108 Green Bay, Wisconsin 01 Vince Lombardi 09 0109 Green Bay and the Packers 03 02 Lambeau field 04 0110 Green Bay 03 Packers 02 0111 Green Bay Packer stadium 04
0113 Green Bay, WI 01 Green Bay Packers 02 0114 Green Bay Packers 02 Titletown Brewery 06 0115 Green Bay Packers 02
Exhibit 2 - Anderson Expert Rebuttal Report Page 7 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0107
Exhibit 2 - Anderson Expert Rebuttal Report Page 8 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0142 titletown brewery 06
Exhibit 2 - Anderson Expert Rebuttal Report Page 9 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0142 0 0 0143
0159 1 1 0160
0171 Titletown Brewery 06 0 0 0172 farve 10 0 0 0173
Exhibit 2 - Anderson Expert Rebuttal Report Page 10 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0176 Green bay wi green bay packers 01 02 winners 07 0177 green bay packers 02 brewery 05 0178 Green Bay Wisconsin 01 Packers 02 0179 titletown brewery 06
0194 Packers 02 Rodgers 08 0195 green bay packers 02
Exhibit 2 - Anderson Expert Rebuttal Report Page 11 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0176
0194 Green Bay 02 0 1 0195 1 1 0196 0 0 0197 1 1 0198
Exhibit 2 - Anderson Expert Rebuttal Report Page 12 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0209 Green Bay 03 Packers 02 0210 green bay 03
Exhibit 2 - Anderson Expert Rebuttal Report Page 13 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0209
0234 Packers 02 0 0 0235
Exhibit 2 - Anderson Expert Rebuttal Report Page 14 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0244 GREEN BAY PACKERS 02 VINCE LOMBARDI 09 0245 green bay packers 02
Exhibit 2 - Anderson Expert Rebuttal Report Page 15 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0244 LAMBEAU 04 0 1 0245 1 1 0246 0 0 0247
0251 0 0 0252 0 0 0253
0260 0 0 0261
Exhibit 2 - Anderson Expert Rebuttal Report Page 16 Re-Analysis of Johnson Data
Revised Q1c First Revised Q1b Revised Q1b Mention BATES Q1b CODE_1 CODE_2 Q1c First Mention CODE 0278 Green Bay Packers 02 Green Bay, WI 01 0279 Green Bay Packers Stadium 04
Exhibit 2 - Anderson Expert Rebuttal Report Page 17 Re-Analysis of Johnson Data
Revised Q1c Revised Q1c Second Second Code 02 or 04 or Mention Mention Code 02 08 or 09 or 10 or BATES Q1c Second Mention CODE_1 CODE_2 Only 12 or 17 Only 0278
0281
0302
Exhibit 2 - Anderson Expert Rebuttal Report Page 18
Exhibit 3: Selected Responses to Question 1e in Johnson Survey Selected Responses to Question 1e in Johnson Survey
BATES Q1e Q1e Q1e 0008 Since the 1950's? Since the 1950's? Since the 1950's? 0014 Not sure Not sure, but think about 50 years ago. 0030 Probably about 30 Probably about 30 or so 0051 Not sure, but could be since about the 1930's. 1935 1957
0058 I do not know. Since the 70s I do not know. Since the 70s. 0065 When I was around 9 or 10 years old. 1964. Since 1964. 0075 not sure but I think I first heard it in the 90's i think I 1st heard it in the 90's but it might be way older 0084 I am not sure but I would say back when Bart Starr I would say since 1955 I am not sure when that restaurant opened. was the quarterback of the Green Bay Packers back in the 1950s. 0086 Maybe the 1960's 55 years Maybe 40 0120 I think maybe 1965 1965 0130 no idea, 60 years or so no idea no idea 0134 As far back as I can remember - 1965. 2010 0135 As long as I remember Titletown always referred to Probably within the last 3 or 4 years ever since As long as I remember the Green Bay Packers Titletown Brewing Company started making a name for themselves 0156 All my life, so at least 32 years I've hear that within the past 12 months 0157 Since 2000, when I was old enough to understand Same year of 2000. more about the packers and their history
0163 I guess since Vince Lombardi was coach here for not sure, maybe 10 yrs.? the Packers 0165 1940's maybe I dont understand this question again 0170 Not sure, possible in the early 1960s back in the early 1960s 0181 Since birth 1970s 1960s. 0215 I would guess over 20, but I do not know for sure.
0279 Maybe 20 years ago. Probably a long time. 0283 Not sure. 30-40 years ago? 30-40 years? Not sure
Exhibit 3 - Anderson Expert Rebuttal Report Page 1 Exhibit 4: Dr. Justin R. Anderson CV and Testimony Experience
16501 Ventura Boulevard, Suite 601, Encino, CA 91436 • Phone (818) 464-2400 • www.mmrstrategy.com
DR. JUSTIN R. ANDERSON, MBA, PHD
Summary of . Expertise in marketing and survey research. Qualifications . Experience in intellectual property matters. . Doctorate, University of Southern California; MBA, University of Illinois; Bachelor of Science, University of Wisconsin.
MMR Strategy Group, Encino, CA 2014 – Present VICE PRESIDENT
MMR provides surveys, analysis, and consulting to measure the attitudes and behaviors of customers and prospective customers. MMR has three primary practice areas: 1. Marketing Research and Consulting: MMR provides marketing research and consulting to help clients improve products, and develop marketing and sales strategies. 2. Litigation Surveys: MMR provides surveys and testimony for intellectual property matters. MMR has been retained by firms including Jones Day, Proskauer Rose, and others. MMR has also been retained by government agencies, including the Department of Justice and the Federal Trade Commission. 3. Claim Substantiation: MMR provides research and consulting to help clients evaluate claims made in packaging, advertising, and other marketplace communications. . As Vice President, I design surveys, manage research projects, and provide consulting for clients. I have conducted more than one hundred surveys during my career. . I regularly conduct surveys and have experience with rebuttals to surveys for intellectual property litigation and claim substantiation matters. . I have published peer-reviewed articles in academic journals and been invited to speak to conferences of the American Marketing Association and other groups. I frequently write on topics relating to marketing and survey research.
Education
. Doctor of Philosophy (PhD) in Business Administration (concentration in Marketing), University of Southern California, 2007. Awarded Doctoral Fellowship. . Master of Business Administration (MBA) (concentration in Marketing), University of Illinois, 2001. Graduated with Academic Excellence. . Bachelor of Science (BS) in Atmospheric Science, University of Wisconsin, 1995.
Anderson CV, May 2017, page 1 MMR
Prior Professional Experience
Lieberman Research Worldwide, Los Angeles, CA 2012 – 2014 RESEARCH DIRECTOR
MMR Strategy Group, Encino, CA 2011 – 2012 RESEARCH DIRECTOR
California State Polytechnic University, Pomona, Pomona, CA 2010 – 2011 VISITING PROFESSOR OF MARKETING
University of North Carolina Wilmington, Wilmington, NC 2007 – 2010 ASSISTANT PROFESSOR OF MARKETING
University of Southern California, Los Angeles, CA 2005 – 2006 INSTRUCTOR OF MARKETING
University of Southern California, Los Angeles, CA 2002 – 2004 RESEARCH FELLOW
BBDO Chicago, Chicago, IL 2001 – 2002 SENIOR RESEARCH ANALYST
United States Air Force, Various Locations 1996 – 1999 METEOROLOGICAL OFFICER
Honors and Awards
. Named an Impact Professor, University of North Carolina Wilmington, 2008, 2009, 2010
. Winner, American Marketing Association Best Lecture Slide Competition, Brands and Branding category, 2008
. Winner, American Marketing Association Best Lecture Slide Competition, Society and Marketing category, 2008
. Excellence in Teaching Award, Marketing Department, Marshall School of Business, University of Southern California, 2005 – 2006
. Doctoral Fellowship, Marshall School of Business, University of Southern California, 2002 – 2007
. MBA Graduate with Academic Excellence (top 15% of class), 2001
. Inducted into Beta Gamma Sigma business honor society, 2001
Anderson CV, May 2017, page 2 MMR
Appointments and Affiliations
. Member, Insights Association, 2017 – Present
. Member, Non-Traditional Marks Committee, International Trademark Association, 2016 – Present
. Editorial Board, Journal of Brand Strategy, 2014 – Present
. Member, International Trademark Association (INTA), 2014 – Present
. Member, Brand Activation Association (BAA), 2014 – Present
. Member, Association of National Advertisers (ANA), 2014 – Present
. Reviewer, Journal of Brand Management, 2011 – Present
. Reviewer, Arts and the Market (formerly Arts Marketing), 2011 – Present
. Member, American Marketing Association (AMA), 2002 – Present
. Member, Marketing Research Association (MRA), 2014 – 2016
. Member, Faculty Teaching Committee, College of Business, California State Polytechnic University, Pomona, 2010 – 2011
. Faculty Advisor, Pi Sigma Epsilon professional sales fraternity, California State Polytechnic University, Pomona, 2010 – 2011
. Chair, Scholarship Committee, Cameron School of Business, University of North Carolina Wilmington, 2009 – 2010
. Faculty Advisor, Student Veterans Organization, University of North Carolina Wilmington, 2008 – 2010
. Member, Military Task Force, University of North Carolina Wilmington, 2008 – 2010
. Member, Scholarship Committee, Cameron School of Business, University of North Carolina Wilmington, 2008 – 2009
. Reviewer, Atlantic Marketing Association Conference, Consumer Behavior/Marketing Research track, 2008
. Reviewer, Society of Consumer Psychology Doctoral Dissertation Proposal Competition, 2008
. Member, Faculty Growth and Development Committee, Cameron School of Business, University of North Carolina Wilmington, 2007 – 2009
. Reviewer, Marketing Science, 2006 – 2007
Anderson CV, May 2017, page 3 MMR
Publications and Speaking Engagements
. “Litigation Surveys for Non-Traditional Marks,” presentation to the U.S. Subcommittee of the INTA Non-Traditional Marks Committee, September 2016.
. “Using Surveys in Intellectual Property Matters,” Continuing Legal Education (CLE) seminar presented to the Bar Association of San Francisco, October 2015.
. Anderson, Justin (2011), “Measuring the Financial Value of Brand Equity: The Perpetuity Perspective,” Journal of Business Administration Online, 10 (1), 1-11.
. “Managing Brand Extensions,” Presentation to Marine Corps Community Services executive leadership team, Camp Lejeune, NC, June 2008.
. “Brand Equity: The Perpetuity Perspective,” Presented to AMA Winter Educators’ Conference, 2007.
. “Entertainment Expectations: How Affective Forecasting and Regret Cause Consumers to Prefer Familiar Mediocrity Over Superior Novelty,” Presented to Houston Doctoral Symposium, 2006.
. “Entertainment Consumption: How Entertainment Goods Give the People What They Want,” Presented to AMA Winter Educators’ Conference, 2006.
Blog Posts Written for www.MMRStrategy.com
Marketing and Marketing Research
. “Can You Measure a Longitudinal Variable in a Cross-Sectional Survey?” (July, 2015)
. “Three Questions to Ask Before Introducing a Brand Extension” (January, 2015)
. “Is Your Country Brand Name Expansionist or Isolationist?” (December, 2014)
. “Are In-Person Surveys Better Than Online Surveys?” (November, 2014)
Litigation Surveys
. “When Do You Need a False Advertising Survey” (September, 2015)
. “Three Essential Elements of a Genericness Survey” (November, 2014)
Anderson CV, May 2017, page 4 MMR
Undergraduate and MBA Marketing Courses Taught
. Business Research Methods
. Buyer Behavior
. Consumer Behavior
. Marketing Intelligence and Communication
. Marketing Research
. Marketing Strategy
. Marketing the Movies
. Principles of Marketing
Selected Topics of Study in MBA and PhD Programs
. Research Methods and Research Design: Doctoral research seminars focused on buyer decision making, consumer psychology, individual choice modeling, marketing management, marketing strategy modeling, and research design and measurement
. Statistics: Doctoral-level courses in probability and statistics focused on comparing groups, hierarchical linear modeling, linear regression analysis, multivariate analysis techniques, and structural equation modeling
. Marketing: Consumer Behavior, Customer Marketing, Global Marketing, Marketing Management, Marketing Research, Marketing Strategy, Pricing, Promotion Management
. Management: Business Strategy, Corporate Strategy, International Business, Strategic Theory
. Communications, Psychology and Sociology: Communications Theory, Organization Theory and Design, Organizational Behavior
. Economics and Finance: Capital Market Environment. Financial Accounting, Game Theory, Macroeconomics, Managerial Accounting, Managing Cash Flows, Microeconomic Theory, Microeconomics
Anderson CV, May 2017, page 5 MMR
Dr. Justin R. Anderson Litigation Expert Witness Experience May 2017
Cases in which Dr. Justin R. Anderson has testified as an expert, including written expert reports or testimony at deposition or trial, in the past four years.
Federal Trade Commission v. Stratford Career Institute, Inc. United States District Court, Northern District of Ohio Retained by Plaintiff
Rimowa Distribution, Inc. v. Travelers Club Luggage, Inc. United States District Court, District of Massachusetts Retained by Defendant
Metal Jeans, Inc. v. Affliction Holdings, LLC and The Buckle, Inc. United States District Court, Central District of California Retained by Plaintiff
Gibson Brands, Inc. v. John Hornby Skewes & Co., Ltd. United States District Court, Central District of California Retained by Defendant
Anderson CV, May 2017, page 6 MMR