declaration of dr. gerald l. ford

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

THE NORTH FACE APPAREL CORP., )) Case No. 4:09-cv-02029-RWS

Plaintiff, )) Declaration of

v. ) Dr. Gerald L. Ford)

WILLIAMS PHARMACY, INC., )JAMES A WINKELMANN, JR., and )THE SOUTH BUTT LLC, )

)Defendants. )

______________________________)

I, Dr. Gerald L. Ford, hereby declare as follows:

INTRODUCTION

1. I am a partner in the marketing research and

consulting firm of Ford Bubala & Associates, located in

Huntington Beach, California, where I have been engaged in

commercial marketing research and consulting for the past thirty-

seven years. I am also an emeritus faculty member of the School

of Business Administration, California State University, Long

Beach, where I held a full-time teaching position for twenty-five

years, prior to my retirement from academia in 1994. My

professional experience is further summarized below in paragraphs

28 through 38.

2. In the instant matter, at the request of Davis

Wright Tremaine LLP, counsel for Plaintiff, The North Face

Apparel Corp. ("The North Face" or "Plaintiff"), I designed and

caused to be conducted a survey to address the issue of

likelihood of dilution with respect to Defendants’ use of "The

Butt Face" name and logo. Specifically, the survey was designed

to measure the degree, if any, to which Defendants’ use of "The

Case: 4:09-cv-02029-RWS Doc. #: 78 Filed: 08/03/12 Page: 1 of 25 PageID #: 460

Butt Face" name and logo is likely to cause, in a post-sale

situation, is likely to cause an association with Plaintiff’s The

North Face mark.

3. The likelihood of dilution survey conducted in

this matter employed a traditional scientific experimental survey

design consisting of two survey cells: (1) a test or

experimental survey cell designed to measure the degree, if any,

to which Defendants’ use of "The Butt Face" name and logo is

likely to cause an association with the Plaintiff’s name and logo

"The North Face"; and (2) a control survey cell designed to

measure the extent of mismeasurement error in the likelihood of

dilution test cell survey results.

4. The results of this likelihood of dilution survey

evidence that, among adults who are likely, within the next six

(6) months, to purchase a T-shirt with a name and a logo,

exposure to Defendants’ "The Butt Face" name and logo causes an

association with Plaintiff’s The North Face mark. On a net

basis, after adjusting the survey data for mismeasurement error,


association with Plaintiff’s The North Face mark for

approximately thirty-five percent (34.50%) of the relevant

universe of adults who are likely to, within the next six (6)

months, purchase a T-shirt with a name a logo.

5. Because of the nature of the survey design

employed in this matter (i.e., a traditional scientific

experimental survey design consisting of two survey cells, a test

cell and a control cell to measure causality), it is clear that

the causal nexus for the association is the use by Defendants of

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"The Butt Face" name and logo and is not due to any other

alternative explanation. In addition, the survey results make

clear that the use of a dissimilar name and logo, like "Butt

Head," in conjunction with Defendants’ T-shirts is not likely to

cause an association with Plaintiff’s The North Face mark.

6. It is my opinion that the results of the survey

support a finding of a likelihood of dilution. Specifically, the

survey results provide clear evidence that exposure to

Defendants’ "The Butt Face" name and logo causes an association

with Plaintiff’s The North Face mark.

SURVEY BACKGROUND

7. Attached hereto as Exhibit A are the results of

the survey which address the issue of likelihood of dilution.

Exhibit A provides a synopsis of the survey methodology, screen

shots of the survey screener and the test and control cell

questionnaires, survey stimuli, response frequencies for the

survey questions, and a listing of respondents’ verbatim

responses to the survey questions. The Appendix to Exhibit A

contains a sequential listing of the survey responses and other

survey-related background materials.

8. The survey sample selection, questions,

questionnaire design, and interviewing procedures employed in

this survey were designed in accordance with the generally

accepted standards and procedures in the field of surveys. The

survey was also designed to meet the criteria for survey

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trustworthiness detailed by the Federal Judicial Center in the

Manual for Complex Litigation, Fourth.1

9. I was responsible for the design of the survey,

the screener and test and control cell questionnaires, as well as

for the procedures to be followed in conducting the interviews.

Data gathering was carried out, under the direction of Ford

Bubala & Associates, by Issues & Answers an independent survey

organization which hosted the online data survey using internet

panelists obtained from Survey Sampling International.

10. Ford Bubala & Associates conducted validations of

approximately twenty-one percent (20.75%) of the interviews by

recontacting, by telephone, survey respondents to confirm their

qualification and participation in the survey.2 None of the

interviews failed to validate.

11. The survey conducted in this matter was

administered under a double-blind protocol. The respondents were

not informed as to the purpose or sponsor of the survey, and

similarly, both the staff of Survey Sampling International and

the staff of Issues and Answers were not informed as to the

purpose or sponsor of the survey.

1 For the proffered poll or survey, "...Relevant factorsinclude whether: the population was properly chosen and defined;the sample chosen was representative of that population; the datagathered were accurately reported; and the data were analyzed inaccordance with accepted statistical principles...In addition, inassessing the validity of a survey, the judge should take intoaccount the following factors: whether the questions asked wereclear and not leading; whether the survey was conducted byqualified persons following proper interview procedures; andwhether the process was conducted so as to ensure objectivity..."See Federal Judicial Center, Manual for Complex Litigation,Fourth, Section 11.493, @ 102-104 (2004).

2 This level of validation exceeds industry standards.

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SURVEY STRUCTURE

12. This survey employed the "Opinion Outpost"

internet panel created and maintained by Survey Sampling

International. Potential respondents were sent an email

invitation inviting them to fill out the screening portion of the

interview to determine whether or not they met the universe

definition. Subsequently, those potential respondents who met

the universe definition were invited to complete the main survey.

13. The relevant universe for this survey consisted of

males and females eighteen (18) years of age or older who were

likely, within the next six months, to purchase a T-shirt with a

name and logo.3

14. The respondent selection procedure employed in

this survey is referred to as a quota sampling method. This

method provided a respondent base that is generally

representative of the age and gender distribution of male and

female adults eighteen (18) years of age or older who report that

within the next six (6) months they are likely to purchase a

T-shirt with a name and logo. This age and gender distribution

3 Additionally, the survey universe was also restrictedto respondents (1) who were using a traditional desktop computer,a laptop/notebook computer, or a tablet computer to read thesurvey; (2) who resided in the United States; (3) who did not,nor did anyone else in their household, work for an advertisingagency, a public relations firm or a market research company; ora retail store or company that makes, sells, or distributes anyclothing; (4) who agreed to answer the questions in the survey bythemselves without the help or assistance of anyone else andwithout seeking information from any other source (e.g., internetsearch); (5) who, if they wore contact lenses or eyeglasses whenusing the device they were using right now would wear them duringthe questionnaire; and (6) who were willing to provide their nameand telephone number for telephone validation purposes.

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was based upon an Opinion Research Corporation internet survey

conducted February 21-22, 2012, among a nationally representative

sample of one thousand (1,000) individuals across the United

States.4

15. As noted earlier, the likelihood of dilution

survey conducted in this matter employed a traditional scientific

experimental survey design consisting of two survey cells: (1) a

test or experimental survey cell designed to measure the degree,

if any, to which Defendants’ use of "The Butt Face" name and logo

is likely to cause an association with the Plaintiff’s name and

logo "The North Face"; and (2) a control survey cell designed to

measure the extent of mismeasurement error in the likelihood of

dilution test cell survey results.

16. In the test cell, survey respondents were shown a

photograph of a mannequin dressed in one of Defendants’ T-shirts

bearing "The Butt Face" name and logo. See Exhibit A, page 5.

4 Respondents in the Opinion Research Corporation surveywere asked whether, in the next six months, they were likely topurchase a T-shirt with a name and logo. The results of theOpinion Research Corporation survey indicate that the genderdistribution of purchasers of a T-shirt with a name and logo wasapproximately 56% male and 44% female and the age distributionwas approximately 41% 18 to 34, 43% 35 to 54, and 16% 55 andabove.

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17. In the control cell, survey respondents were shown

a photograph of the same mannequin dressed in the same T-shirt

with "The Butt Face" name and logo redacted and replaced with a

fictitious name and logo. See Exhibit A, page 41.

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ME

W large

18. The control cell provides a measure of the extent

that mismeasurement exists in the likelihood of dilution test

cell survey results. Specifically, the control cell functions as

a baseline and provides a measure of the degree to which

respondents are likely to give a The North Face response to the

test cell survey questions, not as a result of Defendants’ use of

"The Butt Face" name and logo, but rather because of other

factors, such as the survey’s questions, the survey’s procedures,

or some other potential influence on a respondent’s answers.5

19. The test and control cells were separate surveys.

The questions and procedures for the test cell and the control

5 In this sense, a control cell is similar to theprotocols employed in a pharmaceutical drug test: the test orexperimental cell represents the drug or pill with the "active"ingredient(s) and the control cell represents the "placebo," thatis, the same pill with everything except the "active"ingredient(s).

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ME

X large

cell were identical with the exception of the stimuli shown to

respondents. Any single respondent participated in interviews in

only one of the two survey cells.

20. A total of four hundred (400) interviews were

completed in this survey: two hundred (200) interviews were

conducted in the test cell; and two hundred (200) interviews were

conducted in the control cell.

SURVEY PROCEDURES AND QUESTIONS

21. Initially, potential respondents received an email

invitation (see Exhibit A, Appendix B) inviting them to fill out

the screening portion of the interview to determine whether or

not they met the universe definition. See Exhibit A, pages 6-9

and 42-45. Subsequently, those respondents who met the universe

definition were invited to complete the main survey. At the

beginning of the main survey, respondents were shown a screen

with a letter on it (i.e., W or X) and asked to enter the letter

on their screen. See Exhibit A, pages 9 and 45. This was done

as a tracking mechanism to identify which stimuli respondents

would be exposed to.

22. Respondents were then shown the following

statements.

In this survey, you are going to be shown a photographof a T-shirt and then asked a few questions.

Please understand that we are only interested in youropinions, and if you don’t have an opinion or don’tknow the answer to a question, that is an acceptableanswer.

Please feel free to take as much time as you likelooking at the T-shirt before moving on to the surveyquestions.See Exhibit A, pages 10 and 46.

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In the test cell, respondents were then shown a split-screen


bearing "The Butt Face" name and logo as well as a close-up of

the name and logo and were told:

Please look at this picture of a T-shirt as you wouldif you saw someone wearing this T-shirt with this nameand logo.See Exhibit A, page 10.

In the control cell, respondents were shown a split-screen


in which Defendants’ name and logo had been redacted and replaced

with the fictitious "Butt Head" name and logo as well as a close-

up of the name and logo and were told:

Please look at this picture of a T-shirt as you wouldif you saw someone wearing this T-shirt with this nameand logo.See Exhibit A, page 46.

Next, respondents were asked:

Were you able to read the words and see the logoclearly?See Exhibit A, pages 10 and 46.

Only respondents who answered ’yes’ to this question were allowed

to continue. Next, in the test cell, respondents were shown a

reduced size split-screen photograph of a mannequin dressed in

one of Defendants’ T-shirts bearing "The Butt Face" name and logo

as well as a close-up of the name and logo. In the control cell,

respondents were shown a reduced size split-screen photograph of

a mannequin dressed in one of Defendants’ T-shirts in which

Defendants’ name and logo had been redacted and replaced with the

fictitious "Butt Head" name and logo as well as a close-up of the

name and logo. Respondents were then asked:

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What company or brand, if any, comes to mind when yousee this name and logo? Please be as specific aspossible.See Exhibit A, pages 11 and 47.

Respondents in the test cell and control cell were asked the

basis for their answer with the question:

Why do you say that?6 Again, please be as specific aspossible.See Exhibit A, pages 11 and 47.

Next, respondents in the test cell and the control cell were

again shown the reduced size split-screen photographs of the test

and control cell stimuli and asked:

What other companies or brands, if any, come to mindwhen you see the name and logo on this T-shirt? Again,please be as specific as possible.See Exhibit A, pages 12 and 48.

Respondents in the test cell and control cell then were asked the

basis for their answer with the question:

Why do you say that?7 Again, please be as specific aspossible.See Exhibit A, pages 12 and 48.

Finally, respondents in the test and control cell were shown the

statement:

Thank you for your time and participation.See Exhibit A, pages 12 and 48.

SURVEY RESULTS

Test Cell Survey Results

23. In the test cell, thirty-six percent (36.00%) of

the respondents who were shown Defendants’ T-shirt bearing "The

Butt Face" name and logo reported that The North Face, either

6 Respondents who answered ’don’t know’ to the priorquestion were not asked this question.

7 Respondents who answered ’don’t know’ to the priorquestion were not asked this question.

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alone (33.00%) or in conjunction with another company or brand

(2.50% + 0.50% = 3.00%), came to mind when they saw "The Butt

Face" name and logo. See Exhibit A, Table 1, page 13.

TABLE 18

TEST CELLTHE BUTT FACE

Q18 What company or brand, if any, comes to mind when you seethis name and logo?

Q19 Why do you say that?Q20 What other companies or brands, if any, come to mind when

you see this name and logo on this T-shirt?Q21 Why do you say that?

Response DistributionResponse Categories Number Percent

(n=200)

1. The North Face 66 33.002. The North Face and The Butt Face 5 2.503. The North Face plus Other 1 0.50

__ _____Subtotal 72 36.00

4. The Butt Face 16 8.005. The Butt Face plus Other - not

North Face 5 2.506. Other 32 16.007. None/Don’t know 75 37.50

___ ______Total 200 100.00

24. Following are the responses of the thirty-six

percent (36.00%) of the respondents, in the test cell, for whom

The North Face came to mind after they were exposed to

Defendants’ T-shirt bearing "The Butt Face" name and logo.

8 The table numbers in this declaration correspond to thetable numbers in Exhibit A and therefore may not be sequential.

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TEST CELL




RESPONSE CATEGORY 1: The North FaceRESPONDENT

NUMBER RESPONSE

1006 Q18 The North Face.Q19 Similar logo.Q20 None.Q21 None come to mind.

1007 Q18 The North Face.Q19 Similar logo.Q20 None.Q21 Don’t know.

1021 Q18 North Face.Q19 Looks like their type of font.Q20 North Face.Q21 Looks like their font.

1027 Q18 So lame. That is one of the lamest T-shirts I haveseen ever. How gay!

Q19 Really clowning North Face as Butt Face. The T-shirtdesigner has an ass face.

Q20 If I were North Face, I’d sue the crap out of you!Q21 Because that shirt is disrespectful.

1038 Q18 Don’t know.Q20 North Face.Q21 It’s kind of like The North Face brand but a joke

instead.

1044 Q18 The North Face.Q19 I just get that when I think of the name.Q20 Don’t know.

1049 Q18 The North Face.Q19 It looks like it.Q20 None.Q21 It looks like it.

1050 Q18 North Face.Q19 It has the same symbol.Q20 Can’t think of any.Q21 No reason.

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RESPONSE CATEGORY 1: The North Face - continuedRESPONDENT

NUMBER RESPONSE

1051 Q18 The Northern Face.Q19 The Northern Face.Q20 Don’t know.

1061 Q18 North Face sportswear.Q19 The shape of the logo.Q20 None.Q21 I don’t know of any but North Face.

1062 Q18 North Face.Q19 North Face just looks very similar.Q20 None.Q21 Because I can’t match the logo to any other brand.

1069 Q18 The North Face.Q19 Sounds just like The North Face.Q20 Don’t know.

1071 Q18 North Face.Q19 Similar name and logo.Q20 Don’t know.

1072 Q18 The North Face.Q19 The words and logo is similar to The North Face.Q20 None.Q21 It specifically looks like North Face.

1075 Q18 The North Face.Q19 Looks like their logo, and it’s a play off of their

name.Q20 None.Q21 Because nothing else come to mind.

1079 Q18 North Face.Q19 Because it looks like the same logo.Q20 None.Q21 That is the only company that comes to mind.

1080 Q18 The North Face.Q19 The logo and name are somewhat similar.Q20 Don’t know.

1085 Q18 North Face.Q19 It says Butt Face which is similar to North Face.Q20 None.Q21 None.

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NUMBER RESPONSE

1086 Q18 North Face.Q19 They’re very similar to North Face. I can see that

they’re like a spoof company, I guess.Q20 None.Q21 None. All I could think of is North Face.

1091 Q18 It’s a parody of The North Face North Face logo.Q19 Because it looks kind of like it and has a similar

name.Q20 Don’t know.

1092 Q18 An insensitive (in-a-few-ways) spoof of The NorthFace.

Q19 I did.Q20 No others.Q21 I did.

1094 Q18 North Face.Q19 Just that it sounds similar.Q20 None.

1096 Q18 This name and logo reminds me of The North Facebrand.

Q19 Because North Face is well known for its "butt" logoon its clothing.

Q20 The only other company I can think of right now isSouth Butt.

Q21 Because I learned of South Butt during the time thatNorth Face sued them for trademark infringement.

1099 Q18 North Face.Q19 The butt logo looks something like the North Face

style.Q20 None.Q21 I can only think of one match.

1103 Q18 A little too graphic.Q19 Kind of crass.Q20 North Face.Q21 North Face.

1105 Q18 North Face.Q19 Please!Q20 None.

1112 Q18 [Not answered].Q20 North Face.Q21 Logo color.

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NUMBER RESPONSE

1114 Q18 North Face.Q19 Logo similar.Q20 None.Q21 No other.

1116 Q18 The North Face.Q19 It’s similar.Q20 Don’t know.

1117 Q18 North Face.Q19 Logo looks similar.Q20 None.Q21 Nothing.

1120 Q18 The North Face.Q19 Looks alike.Q20 None.Q21 None.

1121 Q18 It is similar to The North Face logo.Q19 I say that because it looks similar to The North Face

logo to me.Q20 None.Q21 Nothing else comes to mind.

1123 Q18 The North Face.Q19 It looks similar to their logo and it uses the same

colors.Q20 Don’t know.

1124 Q18 North Face.Q19 Looks similar.Q20 Don’t know.

1126 Q18 North Face.Q19 Looks like the logo.Q20 [Not answered].Q21 Don’t look like any other logo.

1127 Q18 North Face.Q19 Because it has a similar logo.Q20 None.

1129 Q18 The North Face.Q19 Because this shirt is a parody of that brand.Q20 Don’t know.

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NUMBER RESPONSE

1132 Q18 The North Face.Q19 Because it is clearly a parody of The North Face’s

logo.Q20 None. It’s The North Face.Q21 Because it’s obvious! It’s completely [expletive]

obvious what it is! You are making fun of The NorthFace! It is completely moronic for you to ask mefifteen [expletive] times what it is when it’sobvious? God, you market research people are complete[expletive] morons!

1134 Q18 North Face.Q19 The logo.Q20 None.Q21 None come to mind.

1142 Q18 North Face.Q19 They both have face in their names, and the logo

looks similar from afar.Q20 Don’t know.

1145 Q18 North Face.Q19 It looks very similar, however. North Face is

definitely not Butt Face.Q20 Nothing. That’s it.Q21 Immediately, I only thought North Face. It was very

similar.

1150 Q18 The North Face.Q19 The North Face.Q20 Don’t know.

1152 Q18 Is this a company name? I have never seen thisbefore.

Q19 I have never seen a shirt with a logo like this.Q20 I suppose it could be like North Face.Q21 The logo looks similar.

1154 Q18 North Face.Q19 It has the same logo.Q20 No other company comes to mind.Q21 It only reminds me of one brand.

1157 Q18 North Face.Q19 Similar style logo.Q20 North Face.Q21 Don’t know.

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NUMBER RESPONSE

1161 Q18 Makes me think of North Face because of face beingused.

Q19 Because I can’t think of any other logo that make useof the word face.

Q20 Don’t know.

1163 Q18 North Face.Q19 The logo looks like/reminds me of The North Face

logo.Q20 None. Just The North Face.Q21 I’m not sure what else to say.

1165 Q18 The North Face.Q19 Because its written the same way, and the symbol

looks similar to theirs as well.Q20 None.Q21 None.

1168 Q18 The North Face.Q19 The small logo on the right hand side of the shirt is

just like The North Face. Also, the logo kind oflooks like The North Face logo.

Q20 There are no other companies that the shirt remindsme of.

Q21 It just looks like The North Face brand and noneother to me.

1169 Q18 The North Face.Q19 The logo looks the same except for the words.Q20 Don’t know.

1170 Q18 North Face.Q19 North Face fashion.Q20 I don’t know.

1171 Q18 The North Face.Q19 Same design.Q20 No other.Q21 Looks like that not like other logo.

1173 Q18 North Face.Q19 It’s a popular brand.Q20 North Face gear.Q21 North Face gear.

1174 Q18 The North Face.Q19 Because it looks like the same logo The North Face

uses. But, you guys are trying to make fun of it bycalling it The Butt Face.

Q20 Don’t know.

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NUMBER RESPONSE

1175 Q18 North Face.Q20 Don’t know.

1177 Q18 North Face.Q19 Same logo and font.Q20 Don’t know.

1179 Q18 North Face.Q19 The logo and text arranged in a way that tells what

logo.Q20 The North Face.Q21 It’s the way the text is put with the imagery.

1181 Q18 North Face.Q19 The logo looks like North Face logo.Q20 Just North Face.Q21 The logo seems to be a little the same.

1185 Q18 Should be North Face. The name is silly.Q19 Looks like a copy of North Face.Q20 Don’t know.

1186 Q18 None. Butt Face.Q19 Why did that T-shirt say Butt Face?Q20 North Face, I guess. Bad T-shirt.Q21 Ok.

1187 Q18 North Face.Q19 Beavis and Butt-Head.Q20 North Face.Q21 A sports company called something like North Face.

1191 Q18 North Face.Q19 Seems like a company mocking the name North Face.Q20 Don’t know.

1194 Q18 The North Face.Q19 Because it looks very similar to The North Face logo.Q20 Don’t know.

1197 Q18 The North Face.Q19 The North Face.Q20 Don’t know.

1198 Q18 North Face.Q19 Looks like their logo.Q20 North Face.Q21 Looks like same logo.

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NUMBER RESPONSE

1199 Q18 North Face.Q19 The logo and the name remind me.Q20 Don’t know.

RESPONSE CATEGORY 2: The North Face and The Butt FaceRESPONDENT

NUMBER RESPONSE

1041 Q18 Nike and The Butt Face.Q19 Print looks like Nike style.Q20 The North Face.Q21 Similarity to "The Butt Face."

1104 Q18 The Butt Face.Q19 It is the name on the shirt.Q20 None.Q21 It may be North Face.

1131 Q18 The Butt Face Never Stop Smiling.Q19 It was very different but the logo was not evasive.Q20 North Face.Q21 It is a similar style and seemed like it was very

close in name.

1137 Q18 The North Face.Q19 Logo looks like The North Face, and The Butt Face is

a funny take-off of The North Face. Sure looks likea rip-off of The North Face to me.

Q20 None.Q21 None.

1167 Q18 The Butt Face.Q19 The logo is clearly printed on the top right corner

of the T-shirt.Q20 The North Face.Q21 I’ve seen the other brand a little bit.

RESPONSE CATEGORY 3: The North Face plus OtherRESPONDENT

NUMBER RESPONSE

1025 Q18 The North Face.Q19 Because it looks similar to that brand logo.Q20 Urban Outfitters.Q21 It’s urban.

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Control Cell Survey Results

25. In the control cell, approximately two percent

(1.50%) of the respondents who were shown one of Defendants’ T-

shirts in which Defendants’ name and logo had been redacted and

replaced with the fictitious "Butt Head" name and logo reported

that The North Face, either alone (1.00%) or in conjunction with

another company or brand (0.50%), came to mind when they saw the

fictitious name and logo. See Exhibit A, Table 4, page 49.

TABLE 4CONTROL CELLBUTT HEAD




Response DistributionResponse Categories Number Percent

(n=200)

1. The North Face 2 1.002. The North Face and Butt Head 1 0.503. The North Face plus Other -- ---

__ _____Subtotal 3 1.50

4. Butt Head 35 17.505. Butt Head plus Other - not

North Face 17 8.506. Other 44 22.007. None/Don’t know 101 50.50

___ ______Total 200 100.00

26. On a net basis, after adjusting the survey data

for mismeasurement error, exposure to Defendants’ "The Butt Face"

name and logo causes an association with Plaintiff’s The North

Face mark for approximately thirty-five percent (36.00% - 1.50% =

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34.50%) of the relevant universe of adults who are likely to,

within the next six (6) months, purchase a T-shirt with a name a

logo. See Exhibit A, Table 7, page 76.

TABLE 7TEST CELL AND CONTROL CELL

ALL RESPONDENTS

Composite Response Analysis

Response DistributionTest Cell Control Cell

Response Categories Percent Percent(n=200) (n=200)

1. The North Face 33.00 1.002. The North Face and The Butt Face

/Butt Head 2.50 0.503. The North Face plus Other .50 ---

_____ ____Total 36.00 1.50

CONCLUSION

27. It is my considered opinion, based upon my

education, background, and professional experience, and based

upon my review and analysis of the survey that the results of the

survey support a finding of likelihood of dilution.

Specifically, the survey results provide clear evidence that


association with Plaintiff’s The North Face mark.

QUALIFICATIONS

28. I hold a Bachelor’s Degree in Advertising (B.A.)

from San Jose State University, a Master’s Degree in Business

Administration (M.B.A.) from the University of Southern

California, and a Doctoral Degree in Business Administration

(D.B.A.) from the University of Southern California.

29. During my twenty-five year academic appointment,

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my teaching responsibilities included both graduate and

undergraduate level courses in a variety of subject areas. My

teaching responsibilities included courses in marketing (e.g.,

marketing, marketing management, advertising, promotion, consumer

behavior, and marketing research) and management (e.g.,

principles of management; business policy and strategy; business

policies, operations, and organizations; and integrated

analysis).

30. I am a member of the American Marketing

Association (AMA), the American Academy of Advertising (AAA), the

American Association of Public Opinion Research (AAPOR), the

Council of American Survey Research Organizations (CASRO), and

the International Trademark Association (INTA).

31. As a partner with Ford Bubala & Associates, I have

been retained by a variety of firms engaged in the consumer

product, industrial product, and service sectors of the economy

to provide marketing consulting and research services.

Approximately one-half of Ford Bubala & Associates’ consultancies

in which I have participated have involved the design and

execution of marketing research surveys.

32. During the past thirty-seven years, I have been

retained in a number of litigation-related consultancies

involving intellectual property matters, including matters before

federal and state courts, the Trademark Trial and Appeal Board of

the U.S. Patent and Trademark Office, and the International Trade

Commission. I have designed and executed surveys relating to

intellectual property matters, including false advertising,

trademark, patent, and other related matters. I am familiar with

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the accepted principles of survey research, as well as the tests

for trustworthiness of properly conducted surveys or polls.9

33. During the past thirty-two years, I have addressed

a variety of groups on the subject of surveys or polls and their

use in the measurement of the state of mind of consumers, with

respect to Lanham Act matters. Specifically, I have spoken at

meetings of the American Bar Association, the American

Intellectual Property Law Association, the American Marketing

Association, the International Trademark Association, the

Marketing Research Association, the Intellectual Property Law

Institute of Canada, Marques, and the Practising Law Institute.

34. I have also written on the subject of the design

and execution of litigation-related surveys in Lanham Act

matters. Attached hereto as Exhibit B is a list of papers I have

written in the past ten years.

35. Since 1998 I have served as a member of the

Editorial Board of The Trademark Reporter, the scholarly legal

journal on the subject of trademarks, published by the

International Trademark Association.

36. I have been qualified and accepted as an expert in

marketing and marketing research in more than sixty trials before

federal and state courts and administrative government agencies,

including the Trademark Trial and Appeal Board.

9 Supra note 1.

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declaration of dr. gerald l. ford

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