J.T. Colby & Company, Inc. et al v. Apple, Inc.
Filing
74
DECLARATION of Claudia T. Bogdanos in Support re: 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, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Chattoraj, Partha)
EXHIBIT B
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
J.T. COLBY & COMPANY, INC. d/b/a
BRICK TOWER PRESS, J. BOYLSTON &
COMPANY, PUBLISHERS LLC and IPICTUREBOOKS
LLC,
Case No. 11-CV-4060 (DLC)
ECF CASE
Plaintiffs,
- against APPLE, INC.,
Defendant.
EXPERT REPORT OF STEPHEN M. NOWLIS
largest producers of smartphones, in the "respondent's consciousness.
"39
Immediately after
causing respondents to think about "smartphones" (and likely Apple, maker of the popular
IPHONE line of smartphones), Dr. McDonald instructed respondents to picture the word
"iBooks" in Apple's distinctive formulation. Thus, the screener question likely caused the
respondents to think more about Apple and Apple products than they would have if they had not
been thinking about "smartphones" just before being asked about "iBooks." This flaw in Dr.
McDonald's methodology likely inflated the rate of confusion.
3.
50.
Dr. McDonald Failed to Ask Generally Accepted Questions for
Testing Confusion.
The most widely accepted survey methodology for testing confusion is called an
Eveready survey. In a typical Eveready survey, respondents are shown the product at issue, are
asked "Who makes or puts out" the product, are given the opportunity to explain the reason for
the answer (i.e., "Why do you say that?"), and then are asked a series of questions to determine
whether the company that "makes or puts out" the product is sponsored by or affiliated with any
other companies. 40 If the stated reasons for a response show that answer is due to the infringing
element, then the survey respondent providing that answer is counted as confused.
51.
However, Dr. McDonald did not follow this method. Instead, Dr. McDonald
asked respondents: "If, on [the] page [of an electronic book], you see the word `iBooks' what
company or companies would you think had made the book available
?"41
By using this question
instead of the standard Eveready approach, Dr. McDonald's survey likely led respondents to
39
Prof. Diamond (2011) warns about order effects in "Reference Guide on Survey Research," in
Reference Manual on Scientific Evidence, 3 rd edition, Federal Judicial Center, The National
Academies Press (hereinafter, "Diamond, Reference Guide").
40
See Swann, pp. 56-57.
41
McDonald Report, p. 1 I .
1717
This book is a work of fiction. The names, characters, places, businesses, or incidents are products
of the author's imagination or are used fictitiously. Any resemblance to actual events or persons living
or dead is entirely coincidental.
An Original Publication of ibooks, inc
Copyright ® 2006 Michael Harreschou
An ibooks, inc Book
All rights reserved, including the right to reproduce this book
or portions thereof in any form whatsoever.
Distributed By Publishers Group West
1700 Fourth Street, Berkely, CA 94710
www.pgw.com
ibooks, inc.
24 West 25th Street
New York, NY 10010
ISBN: 1.59687-310.8
10987654321
Printed in the U.S.A.
81.
In short, the copy of The Raven Deception that was shown to survey respondents
was what consumers would find on a shelf at a bookstore.
82.
The second reason that I selected The Raven Deception is because it did not
contain other information that would suggest that a particular third party was the source of the
35
conclusion that there is not a likelihood of reverse confusion between Plaintiffs' alleged ibooks
mark and Apple's iBooks mark.
/o- ?G
Stephen M. Nowlis, Ph.D.
Date
48
APPENDIX C
HARDCOVER BOOK SURVEY
Screener
INTERVIEWER INSTRUCTION:
PLEASE READ EACH QUESTION EXACTLYAS WRITTEN AND ALLOW THE RESPONDENT SUFFICIENT TIME TO
ANSWER BEFORE PROCEEDING TO THE NEXT QUESTION. DO NOT CHANGE THE WORDING OF ANY
QUESTION.
. We are a marketing and public opinion research firm, and we are
Hello, I'm
conducting a consumer survey. For this survey, we would like to ask you a few questions. We
are not selling anything, and I would like to assure you that there is no right or wrong answer. If
you do not know the answer to a question or do not have an opinion, please say so. This is
strictly a confidential survey.
Si.
Before I begin, I need to make sure that I am getting a representative sample of adults.
Could you please tell me your age... (READ CA TEGORIES IF NECESSARY) (CIRCLE ONE
NUMBER)
END INTERVIEW/INELIGIBLE
ASKS2
S2.
Under age 18 ...................................... I
Age 18 to 34 .......................................2
Age 35 to 54 .......................................3
Age 55 or older ...................................4
RECORD GENDER (CIRCLE ONE NUMBER).
Male.................................................... 1
Female ................................................. 2
S3.
f_
CHECK A GE/GENDER QUOTA (CIRCLE ONE NUMBER)
END INTERVIEW/INELIGIBLE
ASK T
f
Quota filled/closed ..............................I
Quota open/available .......................... 2
HARDCOVER BOOK SURVEY
Main Questionnaire
INTERVIEWER INSTRUCTION:
PLEASE READ EACH QUESTION EXACTLYAS WRITTEN AND ALLOW THE RESPONDENT SUFFICIENT TIME
ANSWER BEFORE PROCEEDING TO THE NEXT QUESTION. DO NOT CHANGE THE WORDING OF ANY
QUESTION.
TO
INTER VIEWER CHECK THAT YOU ARE USING THE APPROPRIATE CELL OF] OR 2 FOR THIS RESPONDENT
PART I. RESPONDENT INSTRUCTIONS
A.
Please be seated at this table. If you normally wear contact lenses or eyeglasses when you
read a book, please put them on now if you are not already wearing them. (CHECK BOX.)
IreadA...............................................................
B.
I would like to show you a book, and then I will ask you a few questions about it (CHECK
BOX)
Iread B ................................................................ u
(Note this was pre-assigned in the program based on age and gender)
C.
REMOVE BOOK LABELED "C-1 " OR
RESPONDENT (CHECK BOX.)
"c-2"
FROM ENVELOPE C-IOR C-2 AND HAND TO THE
I confirm that I removed the book labeled "C1" or "C-2" from Envelope C-1 or C-2 and
handed it to the respondent ............................... u
D.
Please look at or browse this book the way you normally do when you are deciding
whether to buy a book. (CHECK BOX.)
IreadD............................................................... u
E.
Take as long as you would like, to look at or browse this book, and then tell me when you
are finished. (CHECK BOX.)
I read E and waited until the respondent said
he/she was finished ........................................... u
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