Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 945

EXHIBITS re #943 Declaration in Support,, Exhibits to Arnold Declaration (Exhibit 29) filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Ex. 34, #2 Ex. 35, #3 Ex. 53, #4 Ex. 62, #5 Ex. 70, #6 Ex. 83)(Related document(s) #943 ) (Maroulis, Victoria) (Filed on 5/18/2012)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION

10
11

APPLE INC., a California corporation,
Plaintiff,

12
13
14
15
16
17

v.
SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New York
corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA, LLC, a
Delaware limited liability company,
Defendants.

18
19
20
21
22
23
24
25
26
27
28
EXPERT REPORT OF HAL PORET
CASE NO. 11-CV-01846 LHK
sf-3121470 v1

Case No.

11-cv-01846-LHK

EXPERT REPORT OF HAL PORET
IN MATTER OF APPLE INC. V.
SAMSUNG ELECTRONICS CO.,
LTD. ET AL.
SURVEY TO MEASURE WHETHER
THE TRADE DRESS OF THE
iPHONE AND iPAD HAVE
ACQUIRED SECONDARY
MEANING

1

41.

These Controls enabled the survey to measure the noise level for each of the Test

2

Cells – i.e., the tendency to generally associate the concept or functionality of tablet computers

3

with Apple or to name Apple for any other reasons aside from recognition of the specific iPad

4

trade dress. Accordingly, any difference between the Test and Control Cell results cannot be

5

attributed to the survey questions, the functionality of the iPad, general associations of tablet

6

computers with Apple or other forms of survey noise.

7

IV.

SUMMARY OF KEY FINDINGS

8

A.

iPHONE SURVEY

9

42.

The survey data was analyzed based on each of two universes. First, the data was

10

analyzed based on the proper universe for assessing secondary meaning, defined as consumers

11

who have purchased a mobile phone in the past 12 months or are likely to do so in the next 12

12

months (314 Test Cell respondents and 164 Control cell respondents). In order to get a sense of

13

the level of recognition of the iPhone trade dress among a broader set of consumers, the data was

14

also analyzed among all respondents (582 Test Cell and 299 Control Cell), which includes both

15

the universe for secondary meaning and additional respondents who do not meet the above

16

criteria but who own a mobile phone that they purchased more than a year ago or that was

17

purchased for them.

18

43.

Within the core secondary meaning universe of consumers who have purchased a

19

mobile phone in the past 12 months or are likely to do so in the next 12 months, the Test Cells

20

secondary meaning level was in the range of 64.3% to 70.4%. In the Control Cells, the noise

21

level was in the range of 3.7% to 6.7%. Accordingly, the net secondary meaning level was in the

22

range of 60.6% to 63.7%. These results demonstrate that the iPhone Trade Dress has acquired

23

secondary meaning. Among all respondents in the Test Cells, the rate of single source association

24

was in the range of 54.5% to 61.5% and a total of 69.6% gave answers indicating awareness or

25

recognition of the iPhone trade dress. In the Control Cells, the rate of single source association

26

was in the range of 4.3% to 7.0% and a total of 10.4% mentioned Apple or the iPhone.

27

Accordingly, the net rate of awareness or recognition of the iPhone Trade dress was 59.2%.

28
EXPERT REPORT OF HAL PORET
CASE NO. 11-CV-01846 LHK
sf-3121470 v1

35

1

B.

iPAD SURVEY

2

44.

The survey data was analyzed separately for the Cells where the image shown

3

consisted of a head-on view of the iPad (or control) and the Cells where the image shown

4

consisted of an angled view of the iPad 2 (or control) with the button visible at the bottom of the

5

tablet. Within the former (head-on) Cells, the universe consisted only of those who had

6

purchased a tablet computer in the past 12 months or were likely to purchase one in the next 12

7

months or currently owned a tablet. Within the latter (angled) Cells, the data was also analyzed

8

based on two universes: (a) the relevant universe for secondary meaning — consumers who have

9

purchased a tablet computer in the past 12 months or are likely to do so in the next 12 months;

10

and (b) all respondents (including the additional respondents who do not meet the above criteria

11

but have purchased a mobile phone or notebook computer in the past 12 months or were likely to

12

do so in the next 12 months.)

13

1) For Cells 1 and 2 (head-on view of iPad), the secondary meaning level was in the range of

14

55% to 57.3%. In the corresponding Control Cell (Cell 3), the noise level was 17%.

15

Accordingly, the net secondary meaning level was in the range of 38% to 40.3%.

16

2) For Cells 4 and 5 (angled view of iPad), within the secondary meaning universe

17

(consumers who have purchased a tablet computer in the past 12 months or were likely to

18

do so in the next 12 months), the Test Cells secondary meaning level was in the range of

19

74.3% to 75.2%. In the corresponding Control Cells (Cells 6 and 7), the noise level was

20

in the range of 9.9% to 10.8%. Accordingly, the net secondary meaning level was 64.4%.

21
22

3) The results for both sets of Cells (viewed either separately or together) demonstrate that
the iPad Trade Dress has acquired secondary meaning.

23

4) Among all respondents in Cells 4 and 5, the rate of single source association was in the

24

range of 70.5% to 71.2%. In the corresponding Control Cells (Cells 6 and 7), the noise

25

level was in the range of 11.2% to 11.5%. Accordingly, the net result for single source

26

association was in the range of 59.3% to 59.7%.

27
28
EXPERT REPORT OF HAL PORET
CASE NO. 11-CV-01846 LHK
sf-3121470 v1

36

1

See Detailed Findings section below for additional information on results. The full data will be

2

provided in electronic form.22

3

V.

4

METHODOLOGY
A.

5

THE RELEVANT UNIVERSE OF INTEREST
1.

6

45.

iPHONE SURVEY

The relevant universe for the iPhone survey was defined to be actual and

7

prospective purchasers of mobile phones age 16 or older. The specific screening questions used

8

to sample among the relevant universe asked respondents which, if any, of a variety of devices

9

(presented in rotated order) they currently own, have purchased in the past twelve months, or are

10

likely to purchase in the next twelve months. The following answer choices were given:

15

1.
2.
3.
4.
5.
6.
7.
8.

16

46.

11
12
13
14

Gaming system
Digital camera
Desktop computer
Notebook computer
Tablet computer
MP3 player
Mobile phone (including smartphones)
Microwave oven
Respondents who indicated they have purchased a mobile phone (including

17

smartphones) in the past 12 months or are likely to purchase a mobile phone in the next 12

18

months were considered the core relevant universe for secondary meaning and qualified to take

19

the survey. Although the typical standard is to accept only reasonably recent and likely future

20

purchasers, the survey also accepted respondents who currently own a mobile phone, even if it

21

was not one that they purchased within the past 12 months. Such respondents were permitted to

22

take the survey to get a sense of the awareness/recognition level of the iPhone among a broader

23

set of consumers than the secondary meaning universe.
47.

24
25

In sum, the relevant universe for secondary meaning was defined as those who

have purchased a mobile phone in the past 12 months or are likely to purchase a mobile phone in

26
27
28

22

A column has been added to the Excel sheet containing the data which shows how each respondent was
coded. A key is also provided explaining the codes. A blank in the “Code” column means no answer was
given indicating any association with Apple.

EXPERT REPORT OF HAL PORET
CASE NO. 11-CV-01846 LHK
sf-3121470 v1

37