Case: 4:09-cv-02029-RWS Doc.

#: 78 Filed: 08/03/12 Page: 1 of 25 PageID #: 460

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION THE NORTH FACE APPAREL CORP., ) ) Plaintiff, ) ) v. ) ) WILLIAMS PHARMACY, INC., ) JAMES A WINKELMANN, JR., and ) THE SOUTH BUTT LLC, ) ) Defendants. ) ______________________________) Case No. 4:09-cv-02029-RWS Declaration of Dr. Gerald L. Ford

I, Dr. Gerald L. Ford, hereby declare as follows: INTRODUCTION 1. I am a partner in the marketing research and

consulting firm of Ford Bubala & Associates, located in Huntington Beach, California, where I have been engaged in commercial marketing research and consulting for the past thirtyseven years. I am also an emeritus faculty member of the School

of Business Administration, California State University, Long Beach, where I held a full-time teaching position for twenty-five years, prior to my retirement from academia in 1994. My

professional experience is further summarized below in paragraphs 28 through 38. 2. In the instant matter, at the request of Davis

Wright Tremaine LLP, counsel for Plaintiff, The North Face Apparel Corp. ("The North Face" or "Plaintiff"), I designed and caused to be conducted a survey to address the issue of likelihood of dilution with respect to Defendants use of "The Butt Face" name and logo. Specifically, the survey was designed

to measure the degree, if any, to which Defendants use of "The

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 2 of 25 PageID #: 461

Butt Face" name and logo is likely to cause, in a post-sale situation, is likely to cause an association with Plaintiffs The North Face mark. 3. The likelihood of dilution survey conducted in

this matter employed a traditional scientific experimental survey design consisting of two survey cells: (1) a test or

experimental survey cell designed to measure the degree, if any, to which Defendants use of "The Butt Face" name and logo is likely to cause an association with the Plaintiffs name and logo "The North Face"; and (2) a control survey cell designed to measure the extent of mismeasurement error in the likelihood of dilution test cell survey results. 4. The results of this likelihood of dilution survey

evidence that, among adults who are likely, within the next six (6) months, to purchase a T-shirt with a name and a logo, exposure to Defendants "The Butt Face" name and logo causes an association with Plaintiffs The North Face mark. On a net

basis, after adjusting the survey data for mismeasurement error, exposure to Defendants "The Butt Face" name and logo causes an association with Plaintiffs The North Face mark for approximately thirty-five percent (34.50%) of the relevant universe of adults who are likely to, within the next six (6) months, purchase a T-shirt with a name a logo. 5. Because of the nature of the survey design

employed in this matter (i.e., a traditional scientific experimental survey design consisting of two survey cells, a test cell and a control cell to measure causality), it is clear that the causal nexus for the association is the use by Defendants of - 2 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 3 of 25 PageID #: 462

"The Butt Face" name and logo and is not due to any other alternative explanation. In addition, the survey results make

clear that the use of a dissimilar name and logo, like "Butt Head," in conjunction with Defendants T-shirts is not likely to cause an association with Plaintiffs The North Face mark. 6. It is my opinion that the results of the survey Specifically, the

support a finding of a likelihood of dilution.

survey results provide clear evidence that exposure to Defendants "The Butt Face" name and logo causes an association with Plaintiffs The North Face mark. SURVEY BACKGROUND 7. Attached hereto as Exhibit A are the results of

the survey which address the issue of likelihood of dilution. Exhibit A provides a synopsis of the survey methodology, screen shots of the survey screener and the test and control cell questionnaires, survey stimuli, response frequencies for the survey questions, and a listing of respondents verbatim responses to the survey questions. The Appendix to Exhibit A

contains a sequential listing of the survey responses and other survey-related background materials. 8. The survey sample selection, questions,

questionnaire design, and interviewing procedures employed in this survey were designed in accordance with the generally accepted standards and procedures in the field of surveys. survey was also designed to meet the criteria for survey The

- 3 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 4 of 25 PageID #: 463

trustworthiness detailed by the Federal Judicial Center in the Manual for Complex Litigation, Fourth.1 9. I was responsible for the design of the survey,

the screener and test and control cell questionnaires, as well as for the procedures to be followed in conducting the interviews. Data gathering was carried out, under the direction of Ford Bubala & Associates, by Issues & Answers an independent survey organization which hosted the online data survey using internet panelists obtained from Survey Sampling International. 10. Ford Bubala & Associates conducted validations of

approximately twenty-one percent (20.75%) of the interviews by recontacting, by telephone, survey respondents to confirm their qualification and participation in the survey.2 interviews failed to validate. 11. The survey conducted in this matter was The respondents were None of the

administered under a double-blind protocol.

not informed as to the purpose or sponsor of the survey, and similarly, both the staff of Survey Sampling International and the staff of Issues and Answers were not informed as to the purpose or sponsor of the survey. For the proffered poll or survey, "...Relevant factors include whether: the population was properly chosen and defined; the sample chosen was representative of that population; the data gathered were accurately reported; and the data were analyzed in accordance with accepted statistical principles...In addition, in assessing the validity of a survey, the judge should take into account the following factors: whether the questions asked were clear and not leading; whether the survey was conducted by qualified persons following proper interview procedures; and whether the process was conducted so as to ensure objectivity..." See Federal Judicial Center, Manual for Complex Litigation, Fourth, Section 11.493, @ 102-104 (2004).
2 1

This level of validation exceeds industry standards. - 4 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 5 of 25 PageID #: 464

SURVEY STRUCTURE 12. This survey employed the "Opinion Outpost"

internet panel created and maintained by Survey Sampling International. Potential respondents were sent an email

invitation inviting them to fill out the screening portion of the interview to determine whether or not they met the universe definition. Subsequently, those potential respondents who met

the universe definition were invited to complete the main survey. 13. The relevant universe for this survey consisted of

males and females eighteen (18) years of age or older who were likely, within the next six months, to purchase a T-shirt with a name and logo.3 14. The respondent selection procedure employed in This

this survey is referred to as a quota sampling method. method provided a respondent base that is generally

representative of the age and gender distribution of male and female adults eighteen (18) years of age or older who report that within the next six (6) months they are likely to purchase a T-shirt with a name and logo. This age and gender distribution

Additionally, the survey universe was also restricted to respondents (1) who were using a traditional desktop computer, a laptop/notebook computer, or a tablet computer to read the survey; (2) who resided in the United States; (3) who did not, nor did anyone else in their household, work for an advertising agency, a public relations firm or a market research company; or a retail store or company that makes, sells, or distributes any clothing; (4) who agreed to answer the questions in the survey by themselves without the help or assistance of anyone else and without seeking information from any other source (e.g., internet search); (5) who, if they wore contact lenses or eyeglasses when using the device they were using right now would wear them during the questionnaire; and (6) who were willing to provide their name and telephone number for telephone validation purposes. - 5 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 6 of 25 PageID #: 465

was based upon an Opinion Research Corporation internet survey conducted February 21-22, 2012, among a nationally representative sample of one thousand (1,000) individuals across the United States.4 15. As noted earlier, the likelihood of dilution

survey conducted in this matter employed a traditional scientific experimental survey design consisting of two survey cells: (1) a

test or experimental survey cell designed to measure the degree, if any, to which Defendants use of "The Butt Face" name and logo is likely to cause an association with the Plaintiffs name and logo "The North Face"; and (2) a control survey cell designed to measure the extent of mismeasurement error in the likelihood of dilution test cell survey results. 16. In the test cell, survey respondents were shown a

photograph of a mannequin dressed in one of Defendants T-shirts bearing "The Butt Face" name and logo. See Exhibit A, page 5.

Respondents in the Opinion Research Corporation survey were asked whether, in the next six months, they were likely to purchase a T-shirt with a name and logo. The results of the Opinion Research Corporation survey indicate that the gender distribution of purchasers of a T-shirt with a name and logo was approximately 56% male and 44% female and the age distribution was approximately 41% 18 to 34, 43% 35 to 54, and 16% 55 and above. - 6 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 7 of 25 PageID #: 466

17.

In the control cell, survey respondents were shown

a photograph of the same mannequin dressed in the same T-shirt with "The Butt Face" name and logo redacted and replaced with a fictitious name and logo. See Exhibit A, page 41.

- 7 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 8 of 25 PageID #: 467

18.

The control cell provides a measure of the extent

that mismeasurement exists in the likelihood of dilution test cell survey results. Specifically, the control cell functions as

a baseline and provides a measure of the degree to which respondents are likely to give a The North Face response to the test cell survey questions, not as a result of Defendants use of "The Butt Face" name and logo, but rather because of other factors, such as the surveys questions, the surveys procedures, or some other potential influence on a respondents answers.5 19. The test and control cells were separate surveys.

The questions and procedures for the test cell and the control In this sense, a control cell is similar to the protocols employed in a pharmaceutical drug test: the test or experimental cell represents the drug or pill with the "active" ingredient(s) and the control cell represents the "placebo," that is, the same pill with everything except the "active" ingredient(s). - 8 5

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 9 of 25 PageID #: 468

cell were identical with the exception of the stimuli shown to respondents. Any single respondent participated in interviews in

only one of the two survey cells. 20. A total of four hundred (400) interviews were two hundred (200) interviews were

completed in this survey:

conducted in the test cell; and two hundred (200) interviews were conducted in the control cell. SURVEY PROCEDURES AND QUESTIONS 21. Initially, potential respondents received an email

invitation (see Exhibit A, Appendix B) inviting them to fill out the screening portion of the interview to determine whether or not they met the universe definition. and 42-45. See Exhibit A, pages 6-9

Subsequently, those respondents who met the universe At the

definition were invited to complete the main survey.

beginning of the main survey, respondents were shown a screen with a letter on it (i.e., W or X) and asked to enter the letter on their screen. See Exhibit A, pages 9 and 45. This was done

as a tracking mechanism to identify which stimuli respondents would be exposed to. 22. statements. In this survey, you are going to be shown a photograph of a T-shirt and then asked a few questions. Please understand that we are only interested in your opinions, and if you dont have an opinion or dont know the answer to a question, that is an acceptable answer. Please feel free to take as much time as you like looking at the T-shirt before moving on to the survey questions. See Exhibit A, pages 10 and 46. - 9 Respondents were then shown the following

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 10 of 25 PageID #: 469

In the test cell, respondents were then shown a split-screen photograph of a mannequin dressed in one of Defendants T-shirts bearing "The Butt Face" name and logo as well as a close-up of the name and logo and were told: Please look at this picture of a T-shirt as you would if you saw someone wearing this T-shirt with this name and logo. See Exhibit A, page 10. In the control cell, respondents were shown a split-screen photograph of a mannequin dressed in one of Defendants T-shirts in which Defendants name and logo had been redacted and replaced with the fictitious "Butt Head" name and logo as well as a closeup of the name and logo and were told: Please look at this picture of a T-shirt as you would if you saw someone wearing this T-shirt with this name and logo. See Exhibit A, page 46. Next, respondents were asked: Were you able to read the words and see the logo clearly? See Exhibit A, pages 10 and 46. Only respondents who answered yes to this question were allowed to continue. Next, in the test cell, respondents were shown a

reduced size split-screen photograph of a mannequin dressed in one of Defendants T-shirts bearing "The Butt Face" name and logo as well as a close-up of the name and logo. In the control cell,

respondents were shown a reduced size split-screen photograph of a mannequin dressed in one of Defendants T-shirts in which Defendants name and logo had been redacted and replaced with the fictitious "Butt Head" name and logo as well as a close-up of the name and logo. Respondents were then asked:

- 10 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 11 of 25 PageID #: 470

What company or brand, if any, comes to mind when you see this name and logo? Please be as specific as possible. See Exhibit A, pages 11 and 47. Respondents in the test cell and control cell were asked the basis for their answer with the question: Why do you say that?6 Again, please be as specific as possible. See Exhibit A, pages 11 and 47. Next, respondents in the test cell and the control cell were again shown the reduced size split-screen photographs of the test and control cell stimuli and asked: What other companies or brands, if any, come to mind when you see the name and logo on this T-shirt? Again, please be as specific as possible. See Exhibit A, pages 12 and 48. Respondents in the test cell and control cell then were asked the basis for their answer with the question: Why do you say that?7 Again, please be as specific as possible. See Exhibit A, pages 12 and 48. Finally, respondents in the test and control cell were shown the statement: Thank you for your time and participation. See Exhibit A, pages 12 and 48. SURVEY RESULTS Test Cell Survey Results 23. In the test cell, thirty-six percent (36.00%) of

the respondents who were shown Defendants T-shirt bearing "The Butt Face" name and logo reported that The North Face, either Respondents who answered dont know to the prior question were not asked this question. Respondents who answered dont know to the prior question were not asked this question. - 11 7 6

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 12 of 25 PageID #: 471

alone (33.00%) or in conjunction with another company or brand (2.50% + 0.50% = 3.00%), came to mind when they saw "The Butt Face" name and logo. See Exhibit A, Table 1, page 13. TABLE 18 TEST CELL THE BUTT FACE Q18 Q19 Q20 Q21 What company or brand, if any, comes to mind when you see this name and logo? Why do you say that? What other companies or brands, if any, come to mind when you see this name and logo on this T-shirt? Why do you say that? Response Distribution Number Percent (n=200) 66 5 1 __ 72 16 5 32 75 ___ 200 33.00 2.50 0.50 _____ 36.00 8.00 2.50 16.00 37.50 ______ 100.00

Response Categories 1. The North Face 2. The North Face and The Butt Face 3. The North Face plus Other Subtotal 4. The Butt Face 5. The Butt Face plus Other - not North Face 6. Other 7. None/Dont know Total 24.

Following are the responses of the thirty-six

percent (36.00%) of the respondents, in the test cell, for whom The North Face came to mind after they were exposed to Defendants T-shirt bearing "The Butt Face" name and logo.

The table numbers in this declaration correspond to the table numbers in Exhibit A and therefore may not be sequential. - 12 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 13 of 25 PageID #: 472

TEST CELL Q18 Q19 Q20 Q21 What company or brand, if any, comes to mind when you see this name and logo? Why do you say that? What other companies or brands, if any, come to mind when you see this name and logo on this T-shirt? Why do you say that?

RESPONSE CATEGORY 1: The North Face RESPONDENT NUMBER RESPONSE 1006 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 1038 Q18 Q20 Q21 Q18 Q19 Q20 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 The North Face. Similar logo. None. None come to mind. The North Face. Similar logo. None. Dont know. North Looks North Looks Face. like their type of font. Face. like their font.

1007

1021

1027

So lame. That is one of the lamest T-shirts I have seen ever. How gay! Really clowning North Face as Butt Face. The T-shirt designer has an ass face. If I were North Face, Id sue the crap out of you! Because that shirt is disrespectful. Dont know. North Face. Its kind of like The North Face brand but a joke instead. The North Face. I just get that when I think of the name. Dont know. The North Face. It looks like it. None. It looks like it. North Face. It has the same symbol. Cant think of any. No reason.

1044

1049

1050

- 13 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 14 of 25 PageID #: 473

RESPONSE CATEGORY 1: The North Face - continued RESPONDENT NUMBER RESPONSE 1051 Q18 Q19 Q20 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q18 Q19 Q20 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 1079 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q18 Q19 Q20 Q21 The Northern Face. The Northern Face. Dont know. North Face sportswear. The shape of the logo. None. I dont know of any but North Face. North Face. North Face just looks very similar. None. Because I cant match the logo to any other brand. The North Face. Sounds just like The North Face. Dont know. North Face. Similar name and logo. Dont know. The North Face. The words and logo is similar to The North Face. None. It specifically looks like North Face. The North Face. Looks like their logo, and its a play off of their name. None. Because nothing else come to mind. North Face. Because it looks like the same logo. None. That is the only company that comes to mind. The North Face. The logo and name are somewhat similar. Dont know. North Face. It says Butt Face which is similar to North Face. None. None.

1061

1062

1069

1071

1072

1075

1080

1085

- 14 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 15 of 25 PageID #: 474

RESPONSE CATEGORY 1: The North Face - continued RESPONDENT NUMBER RESPONSE 1086 Q18 Q19 Q20 Q21 1091 Q18 Q19 Q20 1092 Q18 Q19 Q20 Q21 1094 Q18 Q19 Q20 Q18 Q19 Q20 Q21 1099 Q18 Q19 Q20 Q21 1103 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q18 Q20 Q21 North Face. Theyre very similar to North Face. I can see that theyre like a spoof company, I guess. None. None. All I could think of is North Face. Its a parody of The North Face North Face logo. Because it looks kind of like it and has a similar name. Dont know. An insensitive (in-a-few-ways) spoof of The North Face. I did. No others. I did. North Face. Just that it sounds similar. None. This name and logo reminds me of The North Face brand. Because North Face is well known for its "butt" logo on its clothing. The only other company I can think of right now is South Butt. Because I learned of South Butt during the time that North Face sued them for trademark infringement. North Face. The butt logo looks something like the North Face style. None. I can only think of one match. A little too graphic. Kind of crass. North Face. North Face. North Face. Please! None. [Not answered]. North Face. Logo color.

1096

1105

1112

- 15 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 16 of 25 PageID #: 475

RESPONSE CATEGORY 1: The North Face - continued RESPONDENT NUMBER RESPONSE 1114 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 1123 Q18 Q19 Q20 1124 Q18 Q19 Q20 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q18 Q19 Q20 North Face. Logo similar. None. No other. The North Face. Its similar. Dont know. North Face. Logo looks similar. None. Nothing. The North Face. Looks alike. None. None. It is similar to The North Face logo. I say that because it looks similar to The North Face logo to me. None. Nothing else comes to mind. The North Face. It looks similar to their logo and it uses the same colors. Dont know. North Face. Looks similar. Dont know. North Face. Looks like the logo. [Not answered]. Dont look like any other logo. North Face. Because it has a similar logo. None. The North Face. Because this shirt is a parody of that brand. Dont know.

1116

1117

1120

1121

1126

1127

1129

- 16 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 17 of 25 PageID #: 476

RESPONSE CATEGORY 1: The North Face - continued RESPONDENT NUMBER RESPONSE 1132 Q18 Q19 Q20 Q21 The North Face. Because it is clearly a parody of The North Faces logo. None. Its The North Face. Because its obvious! Its completely [expletive] obvious what it is! You are making fun of The North Face! It is completely moronic for you to ask me fifteen [expletive] times what it is when its obvious? God, you market research people are complete [expletive] morons! North Face. The logo. None. None come to mind. North Face. They both have face in their names, and the logo looks similar from afar. Dont know. North Face. It looks very similar, however. North Face is definitely not Butt Face. Nothing. Thats it. Immediately, I only thought North Face. It was very similar. The North Face. The North Face. Dont know. Is this a company name? I have never seen this before. I have never seen a shirt with a logo like this. I suppose it could be like North Face. The logo looks similar. North Face. It has the same logo. No other company comes to mind. It only reminds me of one brand. North Face. Similar style logo. North Face. Dont know.

1134

Q18 Q19 Q20 Q21 Q18 Q19 Q20

1142

1145

Q18 Q19 Q20 Q21

1150

Q18 Q19 Q20 Q18 Q19 Q20 Q21

1152

1154

Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21

1157

- 17 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 18 of 25 PageID #: 477

RESPONSE CATEGORY 1: The North Face - continued RESPONDENT NUMBER RESPONSE 1161 Q18 Q19 Q20 1163 Q18 Q19 Q20 Q21 1165 Q18 Q19 Q20 Q21 1168 Q18 Q19 Q20 Q21 1169 Q18 Q19 Q20 Q18 Q19 Q20 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Makes me think of North Face because of face being used. Because I cant think of any other logo that make use of the word face. Dont know. North Face. The logo looks like/reminds me of The North Face logo. None. Just The North Face. Im not sure what else to say. The North Face. Because its written the same way, and the symbol looks similar to theirs as well. None. None. The North Face. The small logo on the right hand side of the shirt is just like The North Face. Also, the logo kind of looks like The North Face logo. There are no other companies that the shirt reminds me of. It just looks like The North Face brand and none other to me. The North Face. The logo looks the same except for the words. Dont know. North Face. North Face fashion. I dont know. The North Face. Same design. No other. Looks like that not like other logo. North Face. Its a popular brand. North Face gear. North Face gear. The North Face. Because it looks like the same logo The North Face uses. But, you guys are trying to make fun of it by calling it The Butt Face. Dont know. - 18 -

1170

1171

1173

1174

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 19 of 25 PageID #: 478

RESPONSE CATEGORY 1: The North Face - continued RESPONDENT NUMBER RESPONSE 1175 1177 Q18 Q20 Q18 Q19 Q20 Q18 Q19 Q20 Q21 1181 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q18 Q19 Q20 Q18 Q19 Q20 Q18 Q19 Q20 Q21 North Face. Dont know. North Face. Same logo and font. Dont know. North Face. The logo and text arranged in a way that tells what logo. The North Face. Its the way the text is put with the imagery. North Face. The logo looks like North Face logo. Just North Face. The logo seems to be a little the same. Should be North Face. The name is silly. Looks like a copy of North Face. Dont know. None. Butt Face. Why did that T-shirt say Butt Face? North Face, I guess. Bad T-shirt. Ok. North Face. Beavis and Butt-Head. North Face. A sports company called something like North Face. North Face. Seems like a company mocking the name North Face. Dont know. The North Face. Because it looks very similar to The North Face logo. Dont know. The North Face. The North Face. Dont know. North Face. Looks like their logo. North Face. Looks like same logo.

1179

1185

1186

1187

1191

1194

1197

1198

- 19 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 20 of 25 PageID #: 479

RESPONSE CATEGORY 1: The North Face - continued RESPONDENT NUMBER RESPONSE 1199 Q18 Q19 Q20 North Face. The logo and the name remind me. Dont know.

RESPONSE CATEGORY 2: The North Face and The Butt Face RESPONDENT NUMBER RESPONSE 1041 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 Q18 Q19 Q20 Q21 1167 Q18 Q19 Q20 Q21 Nike and The Butt Face. Print looks like Nike style. The North Face. Similarity to "The Butt Face." The Butt Face. It is the name on the shirt. None. It may be North Face. The Butt Face Never Stop Smiling. It was very different but the logo was not evasive. North Face. It is a similar style and seemed like it was very close in name. The North Face. Logo looks like The North Face, and The Butt Face is a funny take-off of The North Face. Sure looks like a rip-off of The North Face to me. None. None. The Butt Face. The logo is clearly printed on the top right corner of the T-shirt. The North Face. Ive seen the other brand a little bit.

1104

1131

1137

RESPONSE CATEGORY 3: The North Face plus Other RESPONDENT NUMBER RESPONSE 1025 Q18 Q19 Q20 Q21 The North Face. Because it looks similar to that brand logo. Urban Outfitters. Its urban.

- 20 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 21 of 25 PageID #: 480

Control Cell Survey Results 25. In the control cell, approximately two percent

(1.50%) of the respondents who were shown one of Defendants Tshirts in which Defendants name and logo had been redacted and replaced with the fictitious "Butt Head" name and logo reported that The North Face, either alone (1.00%) or in conjunction with another company or brand (0.50%), came to mind when they saw the fictitious name and logo. See Exhibit A, Table 4, page 49. TABLE 4 CONTROL CELL BUTT HEAD Q18 Q19 Q20 Q21 What company or brand, if any, comes to mind when you see this name and logo? Why do you say that? What other companies or brands, if any, come to mind when you see this name and logo on this T-shirt? Why do you say that? Response Distribution Number Percent (n=200) 2 1 -__ 3 35 17 44 101 ___ 200 1.00 0.50 --_____ 1.50 17.50 8.50 22.00 50.50 ______ 100.00

Response Categories 1. The North Face 2. The North Face and Butt Head 3. The North Face plus Other Subtotal 4. Butt Head 5. Butt Head plus Other - not North Face 6. Other 7. None/Dont know Total 26.

On a net basis, after adjusting the survey data

for mismeasurement error, exposure to Defendants "The Butt Face" name and logo causes an association with Plaintiffs The North Face mark for approximately thirty-five percent (36.00% - 1.50% = - 21 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 22 of 25 PageID #: 481

34.50%) of the relevant universe of adults who are likely to, within the next six (6) months, purchase a T-shirt with a name a logo. See Exhibit A, Table 7, page 76. TABLE 7 TEST CELL AND CONTROL CELL ALL RESPONDENTS Composite Response Analysis Response Distribution Test Cell Control Cell Percent Percent (n=200) (n=200) 33.00 2.50 .50 _____ 36.00 1.00 0.50 --____ 1.50

Response Categories 1. The North Face 2. The North Face and The Butt Face /Butt Head 3. The North Face plus Other Total CONCLUSION 27.

It is my considered opinion, based upon my

education, background, and professional experience, and based upon my review and analysis of the survey that the results of the survey support a finding of likelihood of dilution. Specifically, the survey results provide clear evidence that exposure to Defendants "The Butt Face" name and logo causes an association with Plaintiffs The North Face mark. QUALIFICATIONS 28. I hold a Bachelors Degree in Advertising (B.A.)

from San Jose State University, a Masters Degree in Business Administration (M.B.A.) from the University of Southern California, and a Doctoral Degree in Business Administration (D.B.A.) from the University of Southern California. 29. During my twenty-five year academic appointment, - 22 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 23 of 25 PageID #: 482

my teaching responsibilities included both graduate and undergraduate level courses in a variety of subject areas. My

teaching responsibilities included courses in marketing (e.g., marketing, marketing management, advertising, promotion, consumer behavior, and marketing research) and management (e.g., principles of management; business policy and strategy; business policies, operations, and organizations; and integrated analysis). 30. I am a member of the American Marketing

Association (AMA), the American Academy of Advertising (AAA), the American Association of Public Opinion Research (AAPOR), the Council of American Survey Research Organizations (CASRO), and the International Trademark Association (INTA). 31. As a partner with Ford Bubala & Associates, I have

been retained by a variety of firms engaged in the consumer product, industrial product, and service sectors of the economy to provide marketing consulting and research services. Approximately one-half of Ford Bubala & Associates consultancies in which I have participated have involved the design and execution of marketing research surveys. 32. During the past thirty-seven years, I have been

retained in a number of litigation-related consultancies involving intellectual property matters, including matters before federal and state courts, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office, and the International Trade Commission. I have designed and executed surveys relating to

intellectual property matters, including false advertising, trademark, patent, and other related matters. - 23 I am familiar with

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 24 of 25 PageID #: 483

the accepted principles of survey research, as well as the tests for trustworthiness of properly conducted surveys or polls.9 33. During the past thirty-two years, I have addressed

a variety of groups on the subject of surveys or polls and their use in the measurement of the state of mind of consumers, with respect to Lanham Act matters. Specifically, I have spoken at

meetings of the American Bar Association, the American Intellectual Property Law Association, the American Marketing Association, the International Trademark Association, the Marketing Research Association, the Intellectual Property Law Institute of Canada, Marques, and the Practising Law Institute. 34. I have also written on the subject of the design

and execution of litigation-related surveys in Lanham Act matters. Attached hereto as Exhibit B is a list of papers I have

written in the past ten years. 35. Since 1998 I have served as a member of the

Editorial Board of The Trademark Reporter, the scholarly legal journal on the subject of trademarks, published by the International Trademark Association. 36. I have been qualified and accepted as an expert in

marketing and marketing research in more than sixty trials before federal and state courts and administrative government agencies, including the Trademark Trial and Appeal Board.

Supra note 1. - 24 -

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 25 of 25 PageID #: 484