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

Filing 78

DECLARATION of Claudia T. Bogdanos in Support re: 77 MOTION to Preclude the Testimony of Defendant's Rebuttal Expert Witness Stephen M. Nowlis.. 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 K

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

RESFARC:H

COrJSUL.TING

C.

Experimental Design and Control Stimulus
The standard methodology for any survey to measure source confusion is a
controlled, double-blind study design. A "control arm" is needed to parse out artifact
associated with guessing or other "noise" that might lead consumers to be misled or
draw interpretations for reasons other than the claim in question. In this case, the
extraordinary prominence of Apple as a digital brand could potentially invite guesses
for which a control is clearly required.
The stimulus chosen as "control" must be as similar as possible to the test stimulus in
all ways except one — namely, the attribute or element whose impact the researcher
wishes to measure. The Control chosen in this instance was "eBooks," a plausible
word that controlled effectively for the crucial letter, "i."

D.

Questionnaire
Although a decision was made not to show a specific visual stimulus for reasons
already described, pains were taken to evoke a scenario describing what people
were to envision — namely, the page in a book where identifying information is
displayed.
Q1a. Please envision the following scenario, involving a digital/electronic book.

In the scenario we'd like you to envision, you are looking at the particular
"page" of a digital/electronic book that contains information about the
book — such as the date of publication, the publisher, the Library of
Congress number, etc.
If, on that page, you see the word ["iBooks" / "eBooks"] what company or
companies would you think had made the book available? Please enter
your response in the box below. The box will expand as you type.
If you think you would have no idea, please feel free to say so.
The question was framed so as to bring to mind a specific page that readers could
imagine and have them envision the word "iBooks" (or "eBooks") on that page. No
particular reading device was specified; respondents were free to imagine

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iBooks has come to stand for Apple, thereby creating the perception that a product
or service emanates from Apple, then by using your own iBooks name, you virtually
cede all unique signifying value to Apple, despite any other information you might
provide about yourself to communicate singularity. Every time you use the name
"iBooks," you are inadvertently speaking about Apple.
If the presence of the name "iBooks" on your very own title page (where books
declare their intellectual origins and their publication history), suggests to
consumers that Apple had some hand in making that book available, then you might
as well just drop your own name and find another one altogether. There is no loss
of brand equity more complete than the inability of a brand to "mean" who it is and,
instead, to be forced by the encroachment of another to "mean" who it isn't.

September 17, 2012

Susan Schwartz McDonald

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