CNG Financial Corporation v. Google Inc

Filing 74

RESPONSE in Opposition re 69 MOTION to Exclude Testimony of Plaintiff's Expert Michael Mazis filed by Plaintiff CNG Financial Corporation, Counter Defendant CNG Financial Corporation. (Attachments: # 1 Affidavit /Declaration of Hunter in support of CNG Opposition to Motion# 2 Exhibit Exhibit A to Attachment# 3 Exhibit Exhibit B to Attachment to Opposition# 4 Exhibit Exhibit C to Attachment to Opposition# 5 Exhibit Exhibit D to Attachment to Opposition# 6 Exhibit Exhibit D - Part B to Attachment to Opposition# 7 Exhibit Exhibit E to Attachment to Opposition to Motion to Exclude) (Hunter, Barry)

CNG Financial Corporation v. Google Inc
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EXPERT REPORT OF DR. ITAMR SIlONSON
BACKGROUN AND QUALIFICATIONS
1. I am the Sebastian S. Kresge Professor of Marketing 'at the Graduate

/
,/

School of Business, Stanord University. From November 1994 though August 2000

I served as, the Head of the Staord Marketing Group. A copy of my curculum
vitae, which includes a complete list of my publications, is attached as Exhibit A.
2. I hold a Ph.D. in Marketig from Duke University, Fuqua School of

Business, a Master's degree in business admistration (MBA) from the UCLA
Graduate School of Management, and a Bachelor's degree from The Hebrew
University with majors in Economics and Political Science.

3. My field of expertise is consume.r: behavior, marketing management,

marketig aspects of trademark ingement, survey methods, and decision makg.
Most of my research has focused on buyers' purchase behavior, the effect of product

characteristics (such as brand name, price, featues), marketig activities (such as sales
promcitions and advertsing), the competitive context on buying decisions, and issues

related to trademark ingemènt.
4. I have received several awards, including (a) the, award for the Best

Article published in the Joural of Consumer Research (the major journal on consumer
behavior) between 1987 and 1989, (b) the "Ferber Award" from the Association for
Consumer Research, which is the largest association of consumer researchers in the
world, (c) the 1997 O'Dell Award, given to the Journal of Marketing Research (the

major journal on marketing research issues) article that has had the greatest impact on
the maketig field

in the previous five years, (d) the 2001 O'Dell award, (e) the award

for the Best Arcle published in the Journal of Public Policy & Marketig (the major joural on public policy and legal aspects of marketig) between 1993 and 1995, (f)
EXHIBIT
1

:; D

D lJ

E

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the 2002 American Marketing Association award for the Best Aricle in the area of
Services Marketing, and (g) I was a winner in a competition dealng with research on

the effectiveness of direct marketing programs, which was organized by the Direct
Marketing Association and the Marketing Science Institute.
5. I have published thee arcles relating to trademark sureys and

trademark inringement from the customer's perspective, including two in the

'Trademark Reporter and one in the Joural of Public Policy & Marketing. The two
arcles published in the Trademark Reporter were: "The Effect of Survey Method on

Likelihood of Cornusion Estimates: Conceptual Analysis and Empircal Test,..i and

"An Empircal Investigation of the Meaing and Measurement of Genericness". 2 The
Journal of Public Policy & ,Marketing arcle, titled ''Trademark Infringement from the
Buyer Perspective: Conceptual Analysis and Measurement Implications",3 was

selected (in 1997) as the Best Arcle published in that joural between 1993 and 1995.
6. At Staord University I have taught MBA and executive courses on

Marketing Management, coverig such topics as buyer behavior, developing

marketing strategies, buildig brand equity, advertsing, sales promotions, and
retag. I also taught an MBA course on High Technology Marketig. In addition to

, teaching MBA Marketing Management and Technology Marketing courses, I have

guided and supervised numerous MEA student teams in their work on company and

industry projects dealng with a varety of markets.
7. I have taught several doctoral courses. One doctoral course examines

methods for conductig buyer reseach. It focuses, on the varous stages involved in a
research project, including definig the problem to be investigated, selectig and
1 Itamar Simonson (1993), "The Effect of Survey Method on Likelihood of Confsion Estimates:
Conceptual Analysis and 2 Itaar Simonson (1994), "An Empirical Investigation of

Empirical Test," Trademark Reporter, 83 (3), 364-393. ,
the Meaning and Measurement of

3 Itam Simonson (1994), "Trademark Infringement from the Buyer Perspetive: Conceptual
Analysis and Measurement Implications," Journal of Public Policy and Marketing, 13(2), 181-199.

Genericness, n Trademark Reporter, 84 (2), 199-223.

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developing the research approach, data collection and analysis, and deriving

conclusions. A second doctoral course that I have taught deals with buyer behavior,
covering such topics as buyer decision makng processes, inuences on purchase

decisions, and persuaion. A thd doctoral coure that I have taught deals with buyer

decision makg. Pror to joinng Stanord University, during the six years that I was

on the faculty of the University of Calfornia at Berkeley, I taught an MBA Marketing
Management course, a Ph.D. course on buyer behavior, and a Ph.D. course on buyer
decision makng. I also taught in varous executive education programs, including a
program for marketing managers in high technology companes.
8. After completing my MEA studies and before stag the Ph.D.

program, I worked for five years in a marketing capacity in a subsidiar of Motorola Inc., serving in the last two years as the product marketig manager for 2-way
communcations products. My work included (a) definng new products and designg

marketig plan for new product introductions, (b) customer and competitor analysis,
and (c) sales forecasting.
9. I have conducted, supervised, or evaluated well over 1,000 marketing

research studies, including many related to trademark, brandig, marketing strategies,

and advertsing-related issues. I have also worked as a consultat for companes and
organzations on a varety of marketing and buyer behavior topics. A list of cases in

which I provided sworn testiony durig the past four years is included in Exhbit B.
I am being compensated at my standard rate of $600 an hour.
10. At the request of counsel for Google, Inc. I evaluated the survey

conducted by Dr. Gary Ford ("Ford Survey") on behal of Government Employees
Insurance Company ("Geico"). Documents that I reviewed in connection with
preparation of ths report are listed in Exhibit C.

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AN ANALYSIS OF THE FORD SURVEY DESIGN AND RESULTS
A. The Ford Survey.

Methodology: Overview

11. ,Respondents in the Ford Survey were told to enter the search term

"GEICO," using the Google or Yahoo search engine, and to look at the provided

search results. They were then told to assume that they wanted to purchase automobile
insurance from Geicò and asked to indicate where on the webpage they would click
first and to explain their anwer. Next, the interviewer pointed to a paricular
sponsored listig appearng on the page and asked about the company the respondent

would expect to go to by clicking on that lin. Finally, respondents were asked
whether the company using the (same) sponsored listing was associated or connected
with another company, to identify that company, and to provide an explanation.
12. I wil examie the Ford Survey methodology, includig also the surey's

resp'ondent universe. First, however, it is necessary to review some basic survey

principles, the same priciples that I have emphasized in the doctoral courses that I

have taught at Stanord. In paricular, I wil briefly describe common survey flaws.
referred to as "demand effects," "order effects," and leadig questions. Later in ths

report I wil also outlne the criteria for selectig an experimenta control.

B. Demand and Order Effects and Leading Ouestions: Basic Principles
13. "Demand effects,,4 refers to the phenomenon whereby survey,

respondents use cues provided by the surey procedure and questions to figure out the
purose of the study and the "correct" answers to the questions they are asked. The '

, respondents then tend to provide (what they perceive as) the "correct" answers, to

,make sure that the results "come out right." In the doctoral courses on consumer

4 See, for example, "On the Social Psychology of the Psychologica Experint," M. Orne, American
Psychologist, 17,776-783.

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, behavior and research methods that I have taught at Stanord, I have spent a great deal

of time on the conditions that produce such demand effects.

14. Cours have also recognized the significance of demand effects, and such
problems have contrbuted to the rejection of sureys.s For example, the Cour in the
Simon Propert Group v. mySimon6 case provided the following opinion with respect

to a likelihood of confusion surey methodology: "The question about whether the
two items are put out by the same or a related source is likely to generate so-called

'demand effects' that bias the surey by suggesting to respondents, at least implicitly,

that they should believe there is at least some sort of relationship between the diferent
items when the possibilty might not even have occurred to the vast majority of
consumers who see the items. Other cours have identiied simar problems in simlar

sureys. See, e:g., Wuv's International, Inc. v. Love's Enterprises, Inc.~ 206 U.S.P.Q.

736, 755-56 (D. Colo. 1980) (survey question 'Do you believe that this restaurant is
connected with or related to any other restaurants?' improperly suggeste to

respondent that another entity may be connected with or related to the pary). ..."

15. As Professor McCarthy points out,7 survey questions must not be slanted
or leadig, and "It is improper to suggest a business relationship where the respondent

may previously have had no thought of any such connection." Relatedly, a surey
designer should avoid "order effects," whereby the answers to one question effect the

answers to subsequent questions, thereby makng the latter answers invalid. The issue

of order effects is perhaps the most studied topic in the general domai of surey

'5 Whe I am not an attorney or an expert on legal matters, I find it useful to refer to legal authorities

6 Simon Propert Group L.P. v. mySimon, Inc., 104 F.Supp.2d 1033, 1045 (S.D. Ind. 200).

and prior court decisions to ilustrte the types of issues and principles that have come up in connection with the evaluation of likelihood of confusion and other surveys.

74 J. Thomas McCahy, McCary on Trademaks and Unfai Comptition fMcCarhyl §32:172

(June 2002). '
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reseach.8 For example, in one study,9 college students were asked two questions:

"How happy are youT and "How many dates did you have last month?" The
correlation between answers to these questions depended on the order in which they

were asked - the correlation was 0.12 when the question about happiness was asked
first, and it increased to 0.66 when the question about the number of dates was asked
first.

16. As shown below, the Ford Surey provides an extreme ilustration of

demand and order effects ,and of leading questions. As a result, the survey produced
very,limited relevant information regarding the likeliood of confsion at issue.

C. The Ford Survey Screener and Respondent Universe

17. As Professor McCary points out,10 ''Te first step in designig a surey
is to determe the 'universe' to be studied. The universe is that segment of the

population whose perceptions and state of mind are relevant to the issues in the case. Selection of the proper universe is a crucial step, for even if the proper questions are

asked in a proper manner, if the Wrong persons are asked, the results are liely to be
irelevant." In

paricular, a surey universe that is under-inclusive excludes the

opinons of relevant consumers and is therefore unepresentative of the marketplace.
18. The Ford Survey universe included only respondents who indicated that

they would consider purchasing insurance from Geico. It is noteworthy that the
stadard survey practice is to screen respondents based on whether they are

prospective purchasers of the category at issue, rather than based on any intention to
purchase' a particular brand. Indeed, there is a great deal of evidence that consumers
8 Varous ilustrations of order effects and the psychological factors underlying such effects are
discussed, for example, in the book, Context Effects in Social and Psycholoirca Research, by N. Schwarz and S. Sudman, (1992), Springer-Verlag.
9 Describe in N. Schwar (1996), Cognition and Communication: Judgmental Biases, Research

MSeehods, an§32:159. ofConversatìon, Hilsdale, NJ: Erlbaum. ' et McCarty at Logic io
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often search for inormation and constrct (or form) their brand preferences only when

they actually need to make purchase decisions, 11, and many consumers would not know

several months in advance which brands they might or might not consider. In other
, words, by excluding all those prospective respondents who "failed" to state that they
would consider purchasing insurance from Geico in the futue, the Ford Surey was
liely to be signficantly under-inclusive and unrepresentative of the relevant universe'

of respondents.
19. A question that should have been addressed in the Screener was whether

,respondents were likely to use a searh engine when looking for information about a
specifc car insurance company, as opposed to general inorr.ation about varous

insurance providers. To make sure that the question was not leading, respondents
could have been simply asked, for example, to indicate how they would search for
inormation on the Internet about a parcular car insurance company. If

the

respondents indicated that they would use a search engie, then they would meet ths
criterion for surey parcipation. However, prospective respondents in the Ford

Survey (who might have been told up front by the screenig interviewers about the $5

compensation for qualfied parcipants) could qualfy if they indicated that they would
use the Internet to search for information about "auto inurance providers." Ths
question provided no information regarding the manner in which respondents would

seach for information about a specifc auto insurance provider. Mter all, consumers
can simply enter Geico.com, without the use of a search engine.
20. Finally, the fact that the Ford Survey Screener aleady referred to

'''Geico,'' combined with the later questions in the Main Questionnaie, was liely to

convey to respondents that the survey was conducted for Geico. This explicit mention
1l See, for example, J. Bettman, M.F. Luce, and J. Payne (1998), "Constrctive Consumer Choice
Processes," Journal of Consumer Research, 25 (December), 187-217; R. Dhar and 1. Simonson (2003), "The Effect of Forced Choice on Choice," Journal,of Marketing Research, XL (May), 146160.

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of Geico in the Screener and the subsequent questions (discussed below) violated the
priciple that a surey should make every effort to disguise the purose and the

sponsor of the surey.

,D. The Main Questionnaire: Introduction
21. It is well-established that surey respondents often provide answers even

when they do not know the answer, based on their best guesses. Accordingly, it is the

stadard surey practice to explicitly instruct respondents not to guess, and such an
instrction decreases, though may not elinate, the tendency to guess. Although

respondents in the Ford Survey were told that they had the option to say that they had '

no opinon, the survey failed to instrct them explicitly not to guess.
22. More importtly, the surey relied on leading and ambiguous questions
and suffered from strong demand and order effects. One limtation of the surey,

which might have been dicult to avoid in this case, was the fact that respondents
were not given the opportnity to search for inormation about Geico auto insurance
on the Internet as they normally do, and they were not given the freedom to choose the
seah term they wished to enter. Instead, they were told to enter the term "GEICO" in

the search box of the designated seach engie (Google or Yahoo). This deviation
from the way many consumers search for inormation in the maketplace could only

increase the measured likeliood of confsion. For example, al those consumers who
simply go, to www.Geico.com when looking for information about Geico, without

using any seach engine (and without seeing any sponsored lins), were ignored in the
',,' survey. Although the objectives of the survey might have limited the abilty to allow

respondents to use the search terms of their choice, the more serious flaws of the Main

Questionnaie noted below could have been easily avoided, as discussed next.

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Question 1

23. Mter respondents entered "GEICO" in the search box and saw t~e page

with search results that was presented to them, the first question they were asked was
phrased as follows:
"la. If you wanted to purchase automobile insurance from GEICO, where on ths '

page would you click first? Please point to the listing you would click.
lb. Why do you say that?"

As discussed below, the wordig of this question was highly ambiguous. First,
however, it is clear that, based on the search term they were instrcted to enter
("GEICO") and the wording of this question (and Question 2 discussed subsequently),

respondents could reasonably assume that the surey was conducted for Geico. That
is~ the most obvious conclusion from the search term and the wording of the questions

was that Geico was conductig a surey to find out whether consumers used the links

and ads that Geico had placed on the webpage of search engine results. It is quite
strng that no attempt whatsoever was made to disguise the sponsor of the survey,

which could have been eaily done, for example, by asking respondents first to search

for inormation about another company of by inormg them that other respondents
were assigned to search for information about other companes. As a result, simlar to
the impact of demand effects in other (flawed) sureys that I have used as ilustrations
in my doctoral courses, respondents were liely to tr to provide the "correct" answers
that would please Geico, the surey's sponsor. The implications of

this key flaw of

the survey and its effect on the survey results are discussed below.

24. The wordig of Question la was ambiguous and did not supportthe
claims made in the Ford Report. In paricular, the fact that respondents might click

"first" on a paricular sponsored link when considerig purchasing auto insurance does
not mean that they believed that this site was owned by or represented a specifc
company. Indee, one of the most important advantages of the Internet for consumers
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is the ease with which they can obtan comparative inormation from multiple

suppliers. Thus, for example, because it is so diffcult for consumers to detérmne
whether a parcular company's rates are attractive without comparng them to other
options,12 many of them are likely to check fírst the insurance rates of other companies
by going to web

sites that offer such comparative information. The Ford Surey could

have greatly reduced the level of ambiguity of ths question, for example, by simply
asking where respondents would click to get to the Geico website or to purchase Geico
auto insurance.

25. An examination of the respondents' anwers to Questions 1a and Ib is
inormative and consIstent with the above analysis. It is inormative that only i % of
the respondents (i.e., two respondents) were classifed as indicating that they would go
first to the sponsored link InsureCom.com, which did not include the name "Geico" in
the

heading or text of the sponsored li. Although 1 % is, of course, well below the

"noise" level, it is noteworty that even those two respondents did not appear to

believe that clicking on that li would tae them to the Geico website. Respondent
number 3007, who was one of the two respondents classified as confsed (Ford
deposition, pages 128-131), explained his/her selection of the InsureCom.com website

as follows: "I thnk that there wil be at least a few companies who wil give me a

quote at the same tie, so I can pick the cheapest one quickly and easily." Ths
explanation, which provided no indication that the respondent believed that the
InsureCom.com was a Geico website or necessary provided Geico quotes, was quite

consistent with the text of the sponsored link: "Free Insurance Quotes: Get Insurance
quotes. It's fast easy and always free." Dr. Ford explained the decision to classify this

, respondent as confused by saying that there was no indication that this respondent was
, not confused (deposition pages 128- i 31). I have reviewed many likelihood of
12 See, for example, Stephen Nowlis and Itama Simonson (1997), "Attribute-Task Compatibility as a
Determnant of Consumer Preference Reversals," Joural of

Marketing Research, 34 (May), 205-218.
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confusion surveys and have published aricles on likeliood of confusion surey

formats,13 but I have not yet encountered a claim that someone can be classified as

confused unti and unless it is proven that s/he is not confused. The second respondent that was apparently classified as confsed regarding the InsureCom.com link was

Respondent 86433. That respondent explained the choice of that lin by saying: "It
says free." Again,

this response provided no evidence that the respondent believed

that the InsureCom.com website was related to Geico or sold Geico insurance. As
explained above, it would be very reasonable for consumers, even if they were
thinkg of buying insurance from Geico, to visit first web

sites that offer comparative

rate information.

26. My understadig is that Google's curent policy does not alow
sponsored links that include trademarks if the trademark's owner does not want such
lis to appear on search results pages. Accordingly, the four sponsored li that

included the "Geico" name on the page used in the Ford Surey no longer appear on
the Google page

of search results for "Geico" (or any other Google webpage).

However, it is noteworthy that, even among those respondents who indicated that they

would click first on one of the sponsored link that included the name "GeICo," a large

majority explaied their answers based on their desire to save money, get price quotes,

and ease/convenience of the site (Ford Report Table 10). These explanations suggest
that most of the respondents who indicated they would go first to sponsored links that ,

included "Geico" would do it regardless of whether these sites were connected to
Geico or provided GeICo quotes. Indeed, as indicated earlier, since the Internet makes

information search and gathering comparative inormation so easy and quick, there is

no reason for consumers lookig for price or other inormation from any parcular
13 Itaar Simonson (1993), "The Effect of Surey Method on Likelihood of Confusion Estimates:

Conceptual Analysis and Empircal Test," Traemak Reporter, 83 (3), 364~393. Itama Simonson
(1994), "Trademark hifringement from the Buyer Perspective: Conceptual Analysis and Mearement
Implications," Joural of

Public Policy and Marketing, 13(2), 181-199.

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company not to explore other options first. Such information, in tu, provides socaled "reference prices" and makes it much easier for consumers to assess the relative
attractiveness of the rates of different insurance providers.
27. In summary, although Question la was highly ambiguous, the obtaned

results indicate that (a) virally none of the respondents, who were asked to assume
they wanted to purchase insurance from Geico, indicated they would go first to a

sponsored link that did not include the name "Geico," and (b) the great majority of

those who chose one of the sponsored links that included the "Geico" name éxplaied
their responses based on their desire to save money and get price quotes. Indeed, as

the Ford Report (page 6) noted in the summar of results pertaing to Question 1, "In
total, 16.7% said that they would click first on a sponsored li for reasons other than

that 'Geico' was mentioned, whereas only 2.0% cited mention of 'Geico' or 'Geico car
insurance' ."

Question 2
28. As explaied above, after

respondents were told to seach for

inormation about "GeIco" and were asked (Question 1) where they would click first if
they wanted to

purchase automobile insurance from Geico, it became obvious that the

surey was conducted on behalf of Geico. As noted, the

Ford Surey made no attempt

to disguise the purpose of the study or the identity oUts sponsor, for example, by
askig respondents to search first for information about other companes or by

inonnng them that other respondents were assigned to search for information about
other companes. As explained furer below, once respondents recognized why the

study was conducted, they were likely to follow the provided leads, consistent with the

behavior of respondents who participate in sureys that suffer from demand effects (as
explained above). Thus, after recognizing that Geico was the likely sponsor of the

surey, respondents were mucbmore likely to name "GeIco" in response to the survey
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questions on which the Ford Survey relied, makng the surey results severely biased
and invald.
29. In Question 2, the interviewer pointed to one of the sponsored links and

said:

"2a. Now if you clicked on "Geico,',14 what company or companies website would
you expect to go to?"

2b. Why do you say that?"
Considering that Question 2 was always asked after respondents had been told to
search for information about "Geico" and then asked about the listig they would go to

first if they wanted to purchase Geico insurance, the rather obvious interpretation of
Question 2 was that, following Question 1, the interviewer was now pointing to the '

correct Geico website/lin.
30. As indicated, four of the five sponsored links that the interviewer (in the

Ford Google Surey) pointed to and named in Question 2 included the name "Geico."
That is, the interviewer explicitly named "Geico" as par of the question. Ths, of

course, should have removed any doubt in the respondents' mids as to what company
name the interviewer wanted them to say. Agai, ths is a strghtforward ilustration

of demand effects and a leading question. Dr. Ford was asked durg his deposition
, (page 83) why the interviewers did not simply point to the listing without namg
'''Geico.'' Dr. Ford responded that he wanted to minimize the chances that the
interviewer would point to the wrong listing. Ths explanation is odd. First,

interviewers routinely handle tasks that are more complicated than pointing to a
parcular listing. More importantly, a researcher should never solve a potential

problem by creating another (much more serious) problem, whereby the wording of

,14 For each sponsored link the interviewer read the fit line of that link.

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the question provided the answer desired by the company on whose behalf the survey
was conducted.
31. As this analysis indicates, many respondents were likely to comply with

the leading question and say that the link selected for them would tae them to GeÍ'co's

site, even when the name "Geico" was not explicitly mentioned in the question. The
results among respondents who were asked about the sponsored link

"InsureCom.com," with the heading "Free Insurance Quotes," provides perhaps the
clearest evidence that many respondents simply followed the lead and answered

"Geico," because that seemed like the "right" answer that the interviewer was lookig
for. Note

that the text under the "Free Insurance Quotes" headig did not mention

'.'GeIco" at all. However, the most common explanation provided by respondents in

ths group as to why the link they were asked about would take them to Geico was

"Says GeIco" or the "name/address." These responses, of course, make no sense (and

Dr. Ford was unable to explai them durg his deposition) considering that the
heading, text, and address of the InsureCom.com sponsored li did not mention
"GeIco." However, these explanations make perfect sense when we consider the

demand and order effect produced by the fataly flawed procedure and questions used
in the Ford Surey. Quite simply, most respondents could figure out that "Geico" was

the expeted ("correct') answer, but the best explanation they could come up with was
the name "Geico" in

the heading (even though "Geico" was not in the heading, text, or '

address). Importtly, the same problem affected the responses pertaining to the other
lis to which interviewers pointed, and the only diference was that those links did
include the name "Geico," makg the

justification for the expected answer easier to

make.
32. It is also importt to point out that, as the Ford Surey results show,

respondents who indicated that the link they were asked about would take them to
Geico did not explain those answers by saying that the sponsored links must have been
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related to Geico because the search term they had entered was "Geico." In other
words, the respondents) own accounts show that they did not believe that the mere fact
that a particular company's name was used as the search term meant that all sponsored
lis appeang on the search results page represented that company.

Ouestion 3

33. Respondents who failed to provide the "right" answer to Questions 1 and

2 were given another opportnity to do so in Question 3, which asked them (a)

whether they thought that the company that sponsored the listig they were asked
about was "associated or connected" with any other company or companies, (b) to

name the companes, and (c) to explai their anwers. Although ths question came
after Questions 1 and 2 and suffered from the same demand and order effects, and it

was phrased in a one-sided leading maner (i.e., the standard practice is to ask if the
listig

"is or is not affilated... "), only three of the 22 respondents who were given

that last opportnity to name "GeIco" did so.

The Ford Surey's "Control"

34. A survey conducted in the context of litigation to estimate lieliood of
confsion must include proper "controls.,,15 A control is designed to estiate the
degr of "noise" or "errot'in the surey. Indeed, without a proper control, there is

no benchmark for determining whether a likeliood of confusion estimate is
significant or merely reflects guessing and the flaws of the survey methodology. For
example, Professor McCarhy16 cites a case in which the Seventh Circuit afired a

finding of no infrigement where a survey found that a 25% rate of confusion between
15 See, for example, S. Diamond, Reference Guide on Survey Research, in Reference Manual on

Scientific Evidence 221,226 n.8 (Federal Judicial Center ed., 1994). 16 McCary at §32:187.

15

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the contesting products but the control surey using a radically different named and
dressed product found "noise" of

20%. To fulfll its function, a control must be

similar to the junior mark at issue, without infriging on the senior mark. For
example, in the case of Simon Property Group v mySimon, Inc., the court determined

that any likeliood of confusion survey with a control that does not include the name
, component "Simon" "amounts to little more than a meangless word association or

memory exercise.,,17 Thus, to obta an estimate of the net likelihood of confsion
(after accounting for "noise"), the researcher subtracts the measured confusion level in

the control from the measured confusion level in the "test" (or "treatment") version.
Because the confsion estiate derived in the control group is subtracted, a control

canot raise the net estimate of the lieliood of confusion, it can only reduce it.

35. The only control used in the Ford Survey was "Nike." As is obvious, the

name "Nike" is quite diferent from the name "Geico," and the two companes are in
very diferent lines of business. Thus, the only conclusion that one can draw from the
finding of no confsion in the "control" version is that placing sponsored links, such as

those mentionig Nike, on search results pages causes no confsion with the company
used as the seach

term. That is, the only aspect that "Nike" controls for is whether

entering the search term "Geico" causes confusion with any sponsored li that

appears on the search results page. As the Ford Surey results show, respondents were
not confsed between

the Nike sponsored lis and Geico, indicatig that the mere

fact that consumers use the "Geico" search term does not cause confsion with
sponsored links.
36. Since "Nike" was the only control used, the Ford effectively had no
control for the most serious sources of

bias and "noise." For example, the Ford Survey

made no attempt to find out whether respondents who enter the "Geico" search term,

17 Simon Propert Group L.P. v. mySimon, Inc., 104 F.Supp.2d 1033, 1045 (S.D. Ind. 2000).

16

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shown the same organc results and sponsored links, but were asked about a different

insurance company (e.g., Progressive) were as likely to be "confused" as those asked

about "Geico." Furthermore, the Ford Survey also failed to include controls to
determe whether

measured confsion was due solely to the name "Geico" in the

heading of sponsored link, to the mention of "insurance" or "quotes," or to other
relevant aspects.

37. Thus, the Ford Surey effectively had no control for the most signficant

sources of "noise" and bias. Considering that the measured confsion in the control
versions is subtracted from the measured confusion in the treatment (or "test") version,

the faiure to include proper controls meat that the Ford Surey likely grossly
overestimated the likeliood of confusion. Ths is another fata flaw, wluch makes it
impossible to rely on the Ford Survey for any conclusions regarding the lieliood that

sponsored li pertg to insurance or any other related businesses cause

confsion.
38. Identiying proper controls was not diffcult in ths case, and, as
indicated, such controls could inform us whether responses were due to the inclusion
of the name "GeIco" in the sponsored li and whether the results would have been

similar or different if respondents were asked about a diferent automobile insurance

company. Dr Ford was asked durng his deposition about his decision to use "Nike" as
the only control. His explanation (page 91) was that it was too complicated to try to
figure out which factors caused confusion, because there were too many of them, so he

decided to "test all of them simultaneously" using the Nike "control." As indicated,

findig proper controls was not dificult in this case. But even if identiying and
implementing proper controls were dificult, that would not be an acceptable

justification for not doing it properly. A flawed, meanngless control is a flawed,
meaningless control that provides no information. For example, with "Nike" as the
only control, the survey provided no information and did not claim to provide any
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information as to whether a sponsored link for a financial services firm or an insurance

company, which did not include the name "Geico," would cause initial or any other

type of confusion. Thus, similar to other sureys that failed to use proper controls, tls
surey cannot be relied upon.

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MARTING PRINCIPLES REGARDINUTHE TARGETING OF
COMPETITORS' CUSTOMERS
39. One of the most basic principles of marketing, which I discussed
extensively in the Marketing Management course that I taught durng the past 17

years, is that a company should divide its potential customers into segments or groups,

a practice referred to as "market segmentation." A common way to segment
customers is based on their brand

loyalty, including a segment of those who are

already users of the company's own products and services and those who are users of
specific competitors' products and services. Relatedy, a key aspect of stadard

competitive strategies is to try to convince customers of competing companes'

products to switch. The companes tring to get customers to switch, of course, should
not based their competitive strategies on confusion, but targeting competitors' customers is a very basic and commonly used marketing strategy.

40. For example, when consumers purchase orange juice, they often receive
with their supermarket receipt a coupon for a competitor's orange juice
brand.

Similarly, retaers often locate their stores next to competitors' stores (e.g., in a

shopping mal), in large par because they hope to attact customers of competig
stores. In other cases, salespeople call customers' attention to competing brands and

may recommend that the consumer purchase another brand. For example, a consumer
may visit an electronics store to purchase an Apple iPod. The salesperson may cal

that consumer's attention to a competing digital music player by Sony and say that the
latter costs less. The consumer may then consider all factors and decide which of the

two brands s/he wishes to buy.
41. As indicated earlier, the Internet makes it particularly easy to gather

inormation about diferent options, and the cost of exploring varous links and
potentially relevant websites is very low. If the information provided on a paricular
website is not useful or irelevant, the consumer can simply go back to the previous
19

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site or continue to search. The Internet also makes it possible for marketers to tr to

reach customers of competing brands. Just as one orange juice manufacturer tries to
reach in supermarkets buyers of a competing brand, an insurance company may try to

reach prospective purchasers of another insurance company's services. For example,
companes often tr to convince customers of competitors that they offer better prices,

better products, or both.

42. Consumers who use the Internet are routinely exposed to varous ads and
persuasion attempts, and consistent with basic principles of consumer learng, .they
come to expect such sellng effort. If they wish to purchase insurance from GeIco and

visit a website advertising free quotes, they mayor may not choose to obta

inormation from that site, and they can then go back to the search results (if they

happened to use a search engie) or simply go to Geico.com. Agai, marketig
practices that taget prospective customers of competitors represent widely accepted

marketig pnnciples that are applied routiely as part of normal competitive marketing

strategies.

20

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PAGE 02

SUMARY OE CONCLUSIONS
43. The Ford Surey has several major flaws:
(a) The survey failed to define the proper respondent unverse;
(b) The survey failed. to disguise ,the purpose of the study and the id~ntity of

its

sponsor, leadg to severe demand and order effects;

(c) Although the first surey question (in the Main Questionnire)'~ highly ambiguous, the results showed lack of confion when the spons?"ed li did not
include the "Geico~' name;
(d) The second question was highly leading and suffered from strong demand effecs,
i

as ilusated by respon.dents,who provided the "correct" respon.i~ (~Geico") even

when they had no basis for doing so;
(e) Contrary to the most basic surey priciple, the Ford Survey effebtively had no

control for the most serous sources of "noise" and bias. The Nila control'
showed that merely enterg the "Geico" search te did not cauile confion
i

.with sponsored link. However, the "Nike" control was completdly
uninformative regarding, among other, the lielihoo of"confus~on" with any

inurance company (based on the sae search reults) and whetli~ the meased

confuion was due 'primarily to the name uGeico" in the sponsoreh link.
44. Overall, considerng the combintion of

Suiey results caot be relied upon and provided no relevant evidenc~ of

,i

several fatal flaws, the Ford
Hkelihood

of confusion~ except for showing lack of confsion when sponsored link do not refer
to the trademark used as the seach tenn.

~

Itamar Simonson, Ph.D. ; "'.'

I-_~~

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Itamar Simonson
ADDRESSES '

August 2004
Office:

Home: 1044 Vernier Place Stanford, CA 94305

Graduate School of Business
Stanford University Stanford, CA 94305-5015

[phone]
Cell: [phone] Fax: [phone] EDUCATION

[phone] ¡tamars (, stanford.edu

Ph.D.

Duke University, Fuqua School of Business

Major: Marketing; May 1987
M.B.A.

UCLA, Graduate School of Management Major: Marketing; March 1978 .
Hebrew University, Jerusalem, Israel Major: Economics, Political Science; August 1976

B.A.

ACADEMIC POSITIONS
July 1987 - June 1993

University of Caliornia, Berkeley

Haas School of Business Assistant Professor
July 1993 - Aug. 1996
Sept. 1996 - Aug. 1999

Stanford Graduate School of Business
Associate Professor of Marketing

Stanford Graduate School of Business
Professor of Marketing

Sept. 19991994 - 2000
Fall 2000

Stanford Graduate School of Business Sebastian S. Kresge Professor of Marketing Stanford Graduate School of Business

Marketing Group Head
MIT Sloan School of Management Visiting Professor of Marketing

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AWARDS

- Best Article in the Journal of Consumer Research during the period 1987-1989.
- The 1997 OIDell Award (for the Journal of Marketing Research article that has had the greatest impact on the marketing field in the previous five years).

, - The 2001 O'Dell Award.

- Best Article in the Journal of Public Policy & Marketing during the period 1993-1995.
- The 2002 American Marketing Association Award for the Best Article in the area of
Services Marketing.

- The Association for Consumer Research 1990 IIFerber Award.1I

- Winner in the Marketing Science Institute and Direct Marketing Associalion competition on IIUnderstanding and Meas,uring the Effect of Direct Marketing. II

- Finalist for the OUell Award: 1995; 2002; 2004. - Finalist for the 2003 Paul Green Award (for the Journal of Marketing Research article
with the greatest potential to contribute to the practice of marketing research).

- Hunner~up for the 1993 California Management Review Best Article Award.

- National Science Foundation Grant (for 1996-8).

1995). - Five years in the Berkeley School of Business D6-Point Clubll (instructors with teaching ratings of 6 or more on a 7-point scale).
- Honorable Mention for the Sloan Executive Program Teaching Award (Fall

TEACHING EXPERIENCE
Stanford University:

Marketing Management (for MBAs)

Marketing Management (the Sloan Executive Program)
Technology Marketing (for MBAs) Research Methods for Studying Buyer Behavior (a Ph.D. Course)

Decision Making (a Ph.D. Course) Buyer Behavior (a Ph.D. course)
University Of California. Berkeley. and Duke University:

Marketing Management (for MBAs - day and evening programs) Consumer Behavior and Decision Making (a Ph.D. Course) Principles of Marketing (for undergraduates) Various Marketing Executive Education Programs (including High-Tech, Services, Telecommunications, and Strategy).

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',.' ". ..,."

". ., " .'

BUSINESS EXPERIENCE

October 1978~August 1983 Motorola, Inc.
Worked in an international subsidiary; responsibilties included marketing research and customer analysis, definition of new products, pricing, analysis of sales force performance, competitive intellgence, and forecasting. Conducted studies of markets for various communications products. Last two years served as Product Marketing

Manager for communications products.

Consulting:
Consulted for clients from the communications, services, and manufacturing sectors. Expert witness assignments in the areas of trademark infringement, deceptive advertising, market surveys, buyer behavior, marketing management, brand equity, retailng and distribution, and other aspects of marketing.

PUBLICATIONS
Itamar Simonson, "Determinants of Customers' Responses to Customized Offers: Conceptual Framework and Research Propositions," Journal of Marketing, in press.
Paul Dholakia and Itamar Simonson, ''The Effect of Explicit Reference Points on Consumer Choice and Online Bidding Behavior," Marketina Science, in press. Itamar Simonson, Thomas Kramer, and Maia Young, "Effect Propensity," Organizational Behavior and Human Decision Processes, in press.

Itamar Simonson and Aimee Drolet, "Anchoring Effects on Consumers' Willingness-toPay and Wilingness-to-Accept," Journal of Consumer Research, in press.
Ran Kivetz and Itamar Simonson (2003) ''The Role of Effort Advantage in Consumer Response to Loyalty Programs: The Idiosyncratic Fit Heuristic," Journal of Marketing
Research, 40 (November), 454-67.

Ravi Dhar and Itamar Simonson (2003), "The Effect of Forced Choice on Choice," Journal of Marketing Research, 40 (May), 146-60. '
Dan Ariely and Itamar Simonson (2003), "Buying, Bidding, Playing, or Competing? Value Assessment and Decision Dynamics in Online Auctions," Journal of Consumer Psvcholoav, 13(1&2), 113-123.

Ran Kivetz and Itamar Simonson (2002), "Self Control for the Righteous: Toward a Theoiy of Luxury Pre~Comrnitment," Journal of Consumer Research, 29
(September), 199~217.

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PUBLICA TIONS(continued)

Ran Kivetz and Itamar Simonson (2002), "Earning the Right to Indulge: Effort as a Determinant of Customer Preferences Toward Frequency Program Rewards,"
Journal of Marketing Research, 39 (May),155~70.
Chezy Ofir and Itamar Simonson (2001), "In Search of Negative Customer Feedback:

The Effect of Expecting to Evaluate on Satisfaction Evaluations," Journal of
Marketing Research, 38 (May), 170-82.

(tamar Simonson et al. (2001), "Consumer Research: In Search of Identity," Annual

Review of Psychology, 52, 249-275.
Ran Kivetz and Itamar Simonson (2000), "The Effect of Incomplete Information on Consumer Choice," Journal of Marketing Research, 37(4), 427-48.
Donnel Briley, Michael Morris, and Itamar Simonson (2000), "Reasons as Carriers of Culture: Dynamic Vs. Dispositional Models of Cultural Influence on Decision Making," Journal of Consumer Research, 27 (September), 157-178.

Itamar Simonson and Stephen Nowlis (2000), liThe Effect of Explaining and Need for Uniqueness on Consumer Decision Making: Unconventional Consumer Choices Based on Reasons," Journal of Consumer Research, 27 (June), 49-68.

Aimee Drolet, Itamar Simonson, and Amos Tversky (2000), "Indifference Curves that Travel with the Choice Set," Marketing Letters, 11 (3), 199-209.
Stephen Nowlis and Itamar Simonson (2000), "Sales promotions and the Choice Context as Competing Influences on Consumer Decision Making, ii Journal of Consumer Psycholoav, 9(1), 1-17.

Itamar Simonson (1999), IThe Effect of Product Assortment on Consumer Preferences,. Journal of Retailng, 75(3), 347-70.
Ravi Dhar and Itamar Simonson (1999), IIMaking Complementary Choices in Consumption Episodes: Highlighting Versus BalancingU Journal of Marketing Research, 36 (February), 29-44.

Houghton, David, ..., and Itamar Simonson (1999), "Correction Processes in Consumer

Choice," Marketing Letters, 10(2),107-112.
Ziv Carmon' and Itamar Simonson (1998), "Price-Quality Tradeoffs in Choice Versus

Matching: New Insights into the Prominence Effect,", Journal of Consumer Psychology, 7(4), 323-343.

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PUBLICATIONS (continued)
Stephen Nowlis and Itamar Simonson (1997), "Attribute-Task Compatibilty as a Determinant of Consumer Preference Reversals," Journal of Marketing Research, 34 (May), 205-218.
Joel Huber, ..., and Itamar Simonson (1997), "Thinking About Values in Prospect and Retrospect: Maximizing Experienced Utiity," Marketing Letters, 7, 324-334.

, Stephen Nowlisand Itamar Simonson (1996), "The Impact of New Product Features on Brand Choice," Journal of Marketina Research, 33 (February), 36-46.
Itamar Simonson (1994), 'Trademark Infringement from the Buyer Perspective: Conceptual Analysis and Measurement Implications," Journal of Public Policy and

Marketing, 13(2), 181-199.
Itamar Simonson (1994), .An Empirical Investigation of the Meaning and Measurement of Genericness, II Trademark Reporter, 84 (2), 199-223.

Itamar Simonson, Ziv Carmon, and Suzanne Q'Curr (1994), IIExerimental Evidence
on the Negative Effect of Product Features and Sales Promotions on Brand Choice, II Marketina Science, 13 (1), 23-40.

Itamar Simonson (1993), "Get Closer to Your Customers by Understanding How They Make Choices,. California Manaqement Review, 35 (4), 68-84.

Itamar Simonson, Stephen Nowlis, and Katherine Lemon (1993), 'The Effect of Local Consideration Sets on Global Choice Between Lower Price and Higher Quality," Marketing Science, 12 (4), 357-377.
Itamar Simonson (1993), "The Effect of Survey Method on Likelihood of Confusion Estimates: Conceptual Analysis and Empirjcal Test,. Trademark Reporter, 83 (3),

364-393.
Itamar Simonson, Stephen Nowlis, and Yael Simonson (1993), "The Effect of Irrelevant Preference Arguments on Consumer Choice,'. Journal of Consumer Psychology, 2 (3), 287-306. '

Eldar Shafir, ItamarSimonson, and Amos Tversky (1993), "Reasons-Based Choice,"
Coanition, 49, 11-36.

Amos Tversky and Itamar Simonson (1993), "Context-Dependent Preferences,"
Management Science, 39 (10), 1179-1189.

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PUBLICATIONS (continued)
Itamar Simonson (1992), "Influences of Anticipating Regret and Responsibilit on Purchase Decisions," Journal of Consumer Research, 19 (June), 105-118.

Itamar Simonson and Peter Nye (1992), "The Effect of Accountabilty on Susceptibilty to Decision Errors", Oroanizational Behavior and Human Decision Processes, 51 (3),

416-446.
Itamar Simonson and Bariy Staw (1992), "De-Escalation Strategies: A Comparison of Techniques for Reducing Commitment to Losing Courses of Action," Journal of

Applied Psvchology, 77 (4), 419-426.
Itamar Simonson and Amos Tversky (1992), "Choice in Context: Tradeoff Contrast and Extremeness Aversion," Journal of Marketina Research, 29 (August), 281-295.

Itamar Simonson and Russell S. Winer (1992), "The Influence of Purchase Quantit and Display Format on Consumer Preference for Varietyll, Journal of Consumer Research, 19 (June), 133-138.
Ravi Dhar and Itamar Simonson (1992), "The Effect of the Focus of Comparison on

Consumer Preferences,1I Journal of Marketino Research, 29 (November), 430-440.
Itamar Simonson (1991), liThe Effect of Buying Decisions on Consumers' Assessments

of Their Tastes", Marketing Letters, 2, 1, 5-14.
William T. Ross and Itamar Simonson (1991), "Evaluations of Pairs of Experiences: A Preference for Happy Endings,1I Journal of Behavioral Decision Making, 4(4), 273-

282.
Itamar Simonson (1990), liThe Effect of Purchase Quantit and Timing on Variety Seeking Behavior,lI Journal of Marketina Research, 27 (May), 150-162.
Itamar Simo'nson (1989), uChoice Based on Reasons: The Case of Attraction and Compromise Effects,1I Journal of Consumer Research; 16 (September), 158-174.

Itamar Simonson, Joel Huber, and John Payne (1988), liThe Relationships Between Prior Brand Knowledge and Information Acquisition Order", Journal of Consumer Research, (March), 14,4,566-78.

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ARTICLES UNDER REVIEW
Nathan Novemsky, Ravi Dhar, Norbert Schwarz, and Itamar Simonson, "Preference

Fluency."
Aimee Drolet, Dale Griffn, Mary Frances Luce, and Itamar Simonson, "The Influence of Cognitive Load on Consumer Choice Processes."
Donnel Briley, Michael Morris, and Itamar Simonson, "Language, Cultural Frames, and Consumer Choice."

EDITORIAL ACTIVITIES
Editorial Board: Journal of Consumer Research, Journal of Marketing Research,
Journal of Consumer Psychology, Journal of Behavioral Decision

Making, and

Marketing Letters.
Reviewer for Marketing Science, Journal of Economic Behavior and Organization, Management Science, International Journal of Marketing Research, Journal of Retailng and Consumer Seivices, Journal of Marketing, Journal of Retailng, Organizational Behavior and Human Decision Processes, Journal of Experimental Psychology, Psychological Review, Psychological Bulletin, Journal of Personality and Social Psychology, Psychological Science, and California Management Review.

PROFESSIONAL AFFILIATIONS
American Marketing Association Association for Consumer Research Judgment and Decision Making Society

PERSONAL DATA

Birth Date:
Marital Status:

December 25, 1951

Married, 2 children

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TABB

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EXHIBIT B

Cases in which Dr. Itamar Simonson Testiied as an Expert at Trial (including written
expert reports submitted to the court) or by Deposition in the Past Four Yeas

1. Simon Property Group v. mySimon

2. American Tool Company v. W olfcraft
3. AutoZone v. Tandy (Radio Shack)

4. American Bookseller Association v. Barnes and Noble et aL.

5. Visa International v. INERCO
6. Morrson Entertament Group v. Nintendo Inc. et al.

7. NBTY v. American Home Products
8. Qwest Communcations v. Quest Networks
9. Qwest Communicatons v. TelQuest
10. State of Cali fomi

a v. MCI WorIdCom

11. Visa International v. JSL Corp.

12. M2 Software v. Madacy, Inc.
13. Alberto-Culver v. Trevive

14. Caroll Shelby et aL. v. Supedormance International
15. R.J. Reynolds Tobacco Company v. Cigarettes Cheaper

16. Big 0 Tires v. Bigfoot 4X4 and Vulcan Chain
17. Oracle v. Light

Reading

18. Lectrolar Custom Systems, Inc. v. Pe1co Sales, Inc.
19. Empresa Cubana Del Tabaco v. General Cigar
20. BattleBots v. Anheuser-Busch

21. Genera Motors Corp. v. Avanti Corp.

22. Kal Kan Foods v. lams and Procter & Gamble
23. Coffee Bean & Tea Leaf v. Starbucks

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24. Stabucks v. Sambuck's Coffeehouse

25. Visa International v. VeriSign; VeriSign v. Visa International

26. Chase and Ban of America v. REI and US Ban
27. Trek Bicycle v. Thane International
28. We've Only Just Begun Wedding, Inc. v. The Little White Wedding Chapel, Inc.

29. Kubota Corporation v. Daedong - USA
30. Duncan McIntosh Company v. Newport Dunes Marna et aL.

31. ZonePerfect Nutrtion Company v. Hershey Foods and Mr. Bary Sears
32. VerizonDirectories v. Yellow Book

33. CipherTrust, Inc. v. IronPort Systems, Inc.

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EXllBIT C

MATERILS RELIED UPON OR CONSIDERED BY ITAMAR SIMONSON, PH.D.
1. GEICO's First Amended Complait;
2. Defendant Google Inc.'s Motion to Dismiss;
3. Defendant Google Inc.'s Memorandum of

Points and Authorities in Support of

Dismii;s;
4. Defendant Overture's Motion to Dismiss;

Motion to

5. Defendant Overtre Services, Inc.'s Memorandum in Support of Its Motion to Dismiss;
6. Plaintif's Opposition to Defendant's Motions to Dismiss;
7. Reply Brief of Google Inc. in Support of Motion to Dismiss;

8. Defendant Overtre Services, Inc.' s Reply in Further Support of Its, Motion to Dismiss;
9. CD of Gary Ford's survey spreadsheets;
10. Revised Expert Report of Gary Ford with exhibits;

11. Sample Ford questionnaie regarding Google;
12. Deposition of Gary T. Ford.

340637.01