STATMAN.

Trademark
Confusion
Survey Report
November 23, 2016

Statman Building, Chino inquiry@statman.com

Roces, Makati, MM 1200 (02)439 5766 www.statman.com
Table of Contents
I. Executive Summary............................................... 2
II. Background ........................................................... 2
III. Methodology .......................................................... 3
IV. Demographics ....................................................... 8
V. Survey Results....................................................... 10
VI. The Expert ............................................................ 14
Executive Summary
This is an independent trademark confusion survey report commissioned for Super Putter Enterprises
(SPE) following a trademark-related administrative proceeding instituted against it by Sports
Unlimited, Inc. (SUI) before the Philippine Intellectual Property Office.

A total of 836 respondents were selected from 1000 potential respondents who initially met the set
demographic profile. Respondents were asked to participate in a central location test employing the
modified Exxon 1 and Squirt 2 trademark confusion formats. Specifically, the survey determined
whether between two trademarks there was a confusing similarity sufficient to support a trademark
cancellation suit under Philippine legal standards.

Responses were segmented into four groups wherein Group 1 (G1): neither knew both marks; G2:
only recognizes mark A; G3: only recognizes mark B; G4: recognizes both marks. In all segments
mentioned, results show that no significant likelihood of confusion could arise between the considered
marks.

 G1: 3.87% confusion

 G2: 0.89% confusion
 G3: 0.69% confusion
 G4: 2.94% confusion

The survey has a reliability of 95% confidence.

Note: The complete survey questionnaire/format is included later in this document for reference.

Background
Sports Unlimited, Inc., is a seller-manufacturer of various sports accessories, equipment, and
paraphernalia. The commercial contact points of SUI, through its Philippine distributor, are stores in
popular malls in the Philippines, particularly in the metropolitan cities of Manila, Pasig, Quezon (Metro
Manila), Makati, Cebu and Davao.

Super Putter Enterprises (SPE) is engaged in the business of manufacturing and selling golf equipment,
accessories, and merchandise. Nearly all of its commercial undertakings are confined to stores located
inside golf courses in the Metro Manila area. Other marketing channels involve sponsored sporting

1
Exxon Corp. v. Texas Motor Exchange of Houston, Inc 628 F.2d 500, 507 (5th Cir. 1980)
2
Squirt Co. v. Seven Up Co., 628 F. 2d 1086 (8th Cir. 1980)

Trademark Confusion Survey Report - NOVEMBER 23, 2016 2

events and golf tournaments. Super Putters’ advertising efforts are largely limited to regular members
and casual clients of golf courses, and walk-in clients in golfing tournaments or expositions.

SUP instituted cancellation proceedings against SPE’s trademark on the ground that the mark used by
SPE is confusingly similar to that of SUI.

No part of STATMAN’s compensation depends on the outcome of this report nor of the
administrative proceeding.

Methodology
The design of this research followed and relied on generally accepted principles for the design of
trademark confusion studies as described in any number of key treatises on the topic, accepted in
jurisdictions similar to that of the Philippines; industry reports on consumers for the class of goods
herein involved; and research on purchasing behavior in the country.

In general, the design of a confusion study requires careful attention to the following key areas:

 The definition of the relevant population;

 The procedures for sampling from the relevant population;
 The survey questions;
 The nature of the specific test stimuli shown to sampled consumers; and
 The protocol for estimating confusion.

The discussion in this section of the report is organized around these key areas.

Definition of the Relevant Population

In general terms, the relevant population for a trademark infringement case is usually defined as “that
segment of the population whose perceptions and state of mind are relevant to the issues in the case.” 3
For this report, the relevant population can reasonably be understood as the group of Philippine
consumers who bought or would potentially buy either goods. This population can generally be
defined by the following minimum characteristics:

1) Consumers in the Philippines who are interested in buying athletic apparel/accessories;

2) who can afford to buy athletic apparel/accessories in the price range within which either
company sells, whichever is lower;4 and

3
McCarthy at 32:159
4
Includes non-earning members of a household as long as the household itself satisfies the
requirement.

Trademark Confusion Survey Report - NOVEMBER 23, 2016 3

 3) who can effectively carry out purchasing decisions5.

Potential respondents, a pool of 1,000, were screened against the following criteria:

 Must belong to a household classified as “lower middle” income class or higher per FIES-
SEC Brackets6 (at least PhP 15,780 monthly income)
 Those who have bought or are interested in buying sports/athletic apparel/accessories

Sampling of the Relevant Population

From an initial population of 1,000, the screening tests yielded 836 responsive respondents meeting
the set demographic criteria intended to approximate the “relevant public” of both goods which bear
the marks under consideration. The 836 respondents were then requested to report to designated
facilities to be interviewed.

Sampling procedures approximated consumers’ buying experience by showing a visual stimuli (marks
faithfully reproduced on paper). Thereafter several questions were asked, the order of which being
contingent on answers previously provided by the respondent.

Once the respondent was qualified for interview, he or she was requested to come to the interviewing
facility upon an agreed schedule. The facility has one computer, a square table, and two chairs situated
on sides adjacent to each other. The computer was for the interviewer to use to record respondents'
responses. The interviewer and the respondent were stationed such that the interviewer could see the
respondent but the respondent could not see the interviewer's screen.

As a first step, respondents were re-screened to ensure that the responses to the screening questions
were accurately recorded and that only qualified respondents were included in the study. Any
respondent whose answers to the re-screening made them ineligible were screened out and not asked
the main survey questions. The main survey questions would then be asked with the SPE mark as the
first image shown, followed by questions depending on answers provided. Next would be the showing
of the SUI mark, followed by questions dependent on answers provided. For the segment which
neither recognized both mark, the Squirt format was employed. (for the actual questions, please see flowchart
of stages below). All answers/responses are recorded in full by the interviewer.

At the conclusion of the questions, respondents were thanked for their time and were asked to provide
their contact details.

5
Includes those individuals who help influence the actual purchasing decisions
6
https://psa.gov.ph/content/2012-fies-statistical-tables

Trademark Confusion Survey Report - NOVEMBER 23, 2016 4

The interviews were conducted as double-blind studies; that is, neither the interviewers nor the
respondents were aware of the purpose of the research. Special care was used in writing the survey
instructions so that interviewers and respondents were led to believe that other respondents were
being shown other marks/images.

All completed interviews were called to validate their participation in the interview. Any interviews
that did not validate were excluded from the final data.

The Survey Questions

Images used

SPE Mark SPU Mark

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First stage (showing of alleged junior mark, followed by questions contingent upon possible answers; then alleged senior
mark; employing modified Exxon format)

(responses that are related

to "baseball" or to SPU or
"fastball") What was there
about that mark that made
you say that?

(affirmative response) What (if respondent gives an

first comes to mind when unrelated answer) What
you see this image? company comes to mind?
(SPE mark) Do you
recognize this image?
(response pertains to SPE
(negative response) What
or "golf" or "lasthole")
part of the image catches
What was there about that
your attention the most, if
mark that made you say
any?
that?

(responses that are related

to "baseball" or to SPU or
"fastball") What was there
about that mark that made
you say that?

(affirmative response) What (if respondent gives an

first comes to mind when unrelated answer) What
you see this image? company comes to mind?
(SPU mark); Do you
recognize this image?
(response pertains to SPE
(negative response) What
or "golf" or "lasthole")
part of the image catches
What was there about that
your attention the most, if
mark that made you say
any?
that?

Trademark Confusion Survey Report - NOVEMBER 23, 2016 6

Second stage (modified Squirt format); only asked if respondent does not recognize at least one of the marks

(affirmative response)
What made you say
(side-by-side; Squirt that?
format) Do you think
both marks are made
by the same company? (negative response) In a
scale of 1 to 10, please
rate them according to
how similar they look.

The Test Stimuli

In the study conducted, there were two images used (see above for the copies of the marks). The test
marks were copies of the actual marks as they appear on products currently sold in the market by both
parties. The test images did not include the actual products on which they are attached to eliminate
any noise effected by affiliations/associations brought about by those materials.

Measures of Confusion in the Test Conditions

The following protocol was used to estimate the levels of actual confusion in the test condition. As
explained above, respondents were asked to look at the alleged junior mark and then identify the
associations, if any, to the alleged senior mark.

A respondent was counted as confused if he/she elicited any identifier connected with the alleged
senior mark while being shown the alleged junior mark. Respondents who did not mention any
identifier, but who, upon answer to further questions, did say any identifier connected with the senior
mark were also counted as confused.

Respondents who knew neither mark were counted as confused if their elicited hedonic responses
were 5 and above.

Respondents who knew of only one mark were also counted as confused if their elicited response to
subsequent questions reflected an association/identification to the other mark.

For the qualitative responses, these were converted into separate visual weights pertaining to each
aspect independently and unaidedly proffered by the respondent.

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Demographics
Survey responses are broken out by several demographic categories, as follows:

 The percentage of respondents are broken out by:

 Age
 Gender
 SEC Class
 Location

Survey Respondents by Age and Gender

160 Female
140
120 Male
100
80 Not
60 Specified
40
20
0
Under Age 18 Age 18 - 44 Age 45 - 64 Age 65+

Survey Respondents by SEC

400
350
300
250
200
150
100
50
0
A B C

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 Survey Respondents by City
155
150
145
140
135
130
125
120
Manila Pasig Quezon Makati Cebu Davao

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Survey Results
Survey Period: October 13, 2016 - November 11, 2016

There were a total of 838 completed and validated interviews of which 4 segments of consumers were
determined.

 Group 1: samples who do not recognize either mark

 Group 2: samples who recognize only the SPE mark
 Group 3: samples who recognize only the SUI mark
 Group 4: samples who recognize both SPE and SUI marks

From these four groups, trademark confusion would be assessed taking into account the consumers’
assumed representation of the relevant public.

Survey Respondents by Segment and Confusion

500
430 Not
400 Confused

300 Confused
200 149
111 132
100
6 1 3 4
0
Group 1 Group 2 Group 3 Group 4

Survey Respondents by Segment, Confusion, and Age

6 Ages 18
5 below
5 Ages 18 - 44
4
Ages 45 - 64
3
2 2
2
1 1 1 1 1
1
0 0 0 0 0 0 0 0
0
Group 1 Group 2 Group 3 Group 4

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 Survey Respondents by Segment, Confusion, and SEC
5 4 4 A
4
4 B
3
3 C
3
2
2 1 1 1
1
1 0 0 0 0 0 0
0
Group 1 Group 2 Group 3 Group 4

Survey Respondents by Segment, Confusion, and City

3 Manila
2 2 2 2
2 Pasig
Quezon
2
1 1 1 1 1 1 Makati
1
Cebu
1 Davao
0 0 0 0 0 0 0 0 0 0 0 0 0 0
0
Group 1 Group 2 Group 3 Group 4

Most Dominant Feature (SUI mark)

4%
8%

15% Fan-shaped outline

Baseball Bat
Baseball Figure
FASTBALL text

73%

Trademark Confusion Survey Report - NOVEMBER 23, 2016 11

 Most Dominant Feature (SPE mark)
2%

8%

12%
Ellipse outline
42% Golf ball FIGURE
Green fill
Golf club
"Lasthole" TEXT

36%

Group 1

The study concluded that for consumers who neither knew of both marks, when shown both images
under the Squirt format, 3.87% of them found the marks to be similar. This group approximates
consumers who have bought or are likely to buy sports/athletic apparel/accessories but have not been
introduced to either mark.

Reference to the demographic attributes show that most respondents counted as confused under this
segment belong to the oldest age group, reside outside Metro Manila, and have the lowest SEC bracket.

The percentage being less than the significance level defined for the study, is statistically insignificant
to support a conclusion of confusion.

Group 2

The study concluded that for consumers who only recognize the SPE mark, only 0.89% of them
associate it with the alleged senior mark. It must be noted that as compared to Group 3 and Group 4,
Group 2 has the least counts of confusion. This may be explained by the finding that for those small
number of people who solely know of the SPE mark, they are made aware through informed yet
highly exclusive channels to negate any kind of confusion.

The count which registered as confused belongs to the youngest age group and also the lowest among
all income classes.

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The percentage being less than the significance level defined for the study, is statistically insignificant
to support a conclusion of confusion.

Group 3

The third segment yielded the biggest percentage turn-out of all groups despite a 0.69% confusion
which may be an indication of the relatively more pervasive reach of the SUI mark across socio-
economic classes. Those who counted as confused under this segment belong to the older and poorer
groups, all residing within the Metro Manila area.

The percentage being less than the significance level defined for the study, is statistically insignificant
to support a conclusion of confusion.

Group 4

For the segment approximating consumers who recognize both marks, the study only returned a
2.94% confusion rate, all from samples residing outside the Metro Manila area.

The percentage being less than the significance level defined for the study, is statistically insignificant
to support a conclusion of confusion.

Qualitative Assessment

As a separate test and revalidating measure, the qualitative classification and/or hedonic weights
assigned by the respondents to different features of the marks shows a great discrepancy as to support
a finding of confusion. The study shows that the apparent dominant aspects of the alleged senior mark,
although supported by a considerable majority of the respondents, did not result in a finding of
significant similarity with any perceived feature of the alleged junior mark.

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The Expert

Taylor Z. Baylon, MBA, PhD

Dr. Taylor Baylon is a Senior Vice President at STATMAN with expertise in statistics, sampling,
survey research methods, risk assessment, and market research. Dr. Baylon has testified at trial
and in deposition on the application of statistical methods, sampling, questionnaire design, and
the use of surveys in a range of cases. The expert’s litigation and project experience includes
sampling, survey research, design of field protocols, and statistical analysis of large data files
(i.e., claims, customers, transactions). Dr. Baylon has pioneered the application of survey
sampling and survey methods to the measurement of customer, economic, and behavioral
issues in the energy and natural resource fields. Dr. Baylon has published a number of works
regarding consumer choice, consumer attitudes, and response to product and service reliability,
as well as economic measurement of value of service.

Dr. Baylon has managed case teams to provide market research in complex cases, including
trademark and trade dress infringement, class action matters, false and deceptive advertising,
antitrust issues and patent damages. Taylor has also assisted attorneys in assessing the benefits
of collecting market research data, critiquing opposing expert reports and preparing experts
for deposition and trial questioning.

Dr. Baylon also serves as an expert witness on survey research issues related to trademarks,
secondary meaning, customer confusion, class certification, false and deceptive advertising, etc.

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Work Experience and Educational Background

Senior Vice President

STATMAN
2015 – Present (1 year)
Provide expert research consultation, expert witness testimony, and rebuttal critiques for consumer
surveys designed for trademark, trade dress, and false advertising litigation.

Principal and Practice Lead

STATMAN
2011 – Present (5 years)Boston, MA
Led the firm’s Litigation Support practice to support expert testimony in civil cases through survey
research and other marketing science initiatives.

Senior Project Director

Forbes Consulting Group
2005 – 2011 (6 years)

Washington State University

PHD, Mathematics (Statistics)
2003-2005

Senior Analyst
Lockheed Martin
2002 – 2003 (1 year)

Associate Professor 3 (Tenured)

University of the Philippines
1997 – 2002 (3 years)

University of Colorado Colorado Springs

MBA, Marketing/Marketing Management
1994 – 1996

University of the Philippines

Bachelor of Laws
1991 – 1994

University of the Philippines

Statistics
1987 – 1991

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