J.T. Colby & Company, Inc. et al v. Apple, Inc.

Filing 174

DECLARATION of Todd Anten in Support re: 77 MOTION to Preclude the Testimony of Defendant's Rebuttal Expert Witness Stephen M. Nowlis., 73 MOTION to Preclude the Testimony of Defendant's Expert Witness E. Deborah Jay.. Document filed by Ipicturebooks LLC, J.Boyston & Company, J.T. Colby & Company, Inc., Publishers LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Chattoraj, Partha)

EXHIBIT D

A SURVEY TO MEASURE
POTENTIAL SOURCE CONFUSION
ASSOCIATED WITH iBOOKS
IN RE: J.T. COLBY & COMPANY, INC. D/B/A BRICK TOWER PRESS,
J. BOYLSTON & COMPANY, PUBLISHERS LLC AND IPICTUREBOOKS LLC v. APPLE, INC.,
CASE NO. 11-CIV-4060,
UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK

Conducted by
Susan Schwartz McDonald, Ph.D.
National Analysts Worldwide

September 17, 2012

II. SURVEY DESIGN RATIONALE
A. Methodological Background
A few basic experimental design protocols have been used over the past six decades
to produce statistics that courts have considered illustrative of “likelihood of
confusion” in the broader market. What is, by now, an acknowledged “standard”
approach involves selection of a stimulus that can plausibly represent market
exposure; manipulation of that stimulus using a proper experimental control; and
then calculation of a net “likelihood of confusion” percentage by subtracting Control
responses from Test responses. Experimental surveys are, of course, little
“laboratories.” Typically, though, a “likelihood of confusion” survey statistic is
extrapolated to the marketplace without specific adjustment for the relationship
between survey exposure and real world exposure (i.e., the frequency with which any
given consumer would be likely to experience the mark or message precisely as
represented in the survey stimulus). Only in the context of damage calculations is
frequency or breadth of marketplace exposure introduced directly into the
calculations.
The appetite to improvise in Lanham Act survey designs has been limited by an
understandable desire to replicate approaches previously deemed valid. Thus,
experts avail themselves of court-approved methodologies whenever possible in
order to avoid doing battle over “settled” issues of survey science. However, in this
particular circumstance, where one of the world’s largest brands has squared off
against one of its smaller competitors (in a market environment undergoing
significant transformation), a more customized approach is required to characterize
Plaintiffs’ predicament. There is nothing routine about the implications of brand
encroachment and collision visited here upon Plaintiffs by Apple.
To explain why, it is necessary to describe (a) a brief history of these two brands
leading up to the point at which their divergent paths crossed, and (b) how the path
forward for Plaintiffs might ultimately have been charted, had Apple not
misappropriated the iBooks brand for its own growing family of “i” marks. Because
the court will have more detailed chronologies at its disposal, this account is
sketched in broad marketing strokes, consistent with my professional mandate in
this case.

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III. SURVEY DESIGN
A. Objectives and Basic Design Considerations
The objective of my survey was to prove or disprove the ingoing hypothesis that the
presence of the word “iBooks” on the “page” of a digital book containing
information about the book would lead a significant percentage of digital-book
consumers to infer that Apple had played a role in making the book available. I
chose to focus only on the digital-book market because the survey aims to be both
reflective of the present and also forward-looking: electronic consumption is driving
the growth and direction of the book market, and any healthy publishing brand
must develop or, be prepared to develop, in that emerging landscape. Apple is, of
course, one of the companies that have sculpted that landscape. The world of
digital reading is the point of intersection where Plaintiffs’ iBooks and Apple’s
iBooks naturally confront one another.
I did not contrive a particular cover page as a stimulus, nor did I make assumptions
about what specific information would be present on that page other than “iBooks”
(or the Control, “eBooks”), in order not to evoke a scenario that would be unduly
narrow or inappropriately specific. Among the vast array of possibilities, the only
fixed idea was the presence of “iBooks” or “eBooks,” with all else left equally to the
imagination of respondents.
My survey design was guided by methodological standards required to produce
results that can be considered valid and statistically reliable. Those standards
require that the universe be properly defined and the sampling frame
representative of the universe; the sampling procedures, relevant, transparent, and
unbiased; the experimental survey design, scientifically correct; the questions clear,
non-biased, and appropriately framed to meet the objectives; and the analysis,
properly performed and interpreted.
The survey was designed by me and implemented under my direction between
August 30 and September 4, 2012 by staff members of National Analysts
Worldwide, the 80-person business research and marketing consultancy I lead.

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