Likelihood of Confusion Surveys/Infringement

Apple vs. Samsung: Litigation Surveys as Evidence

The ongoing litigation between Apple and Samsung has attracted a lot of attention, and with good reason. This trial is high profile, with a lot at stake. Apple, arguing that Samsung copied certain features from the iPhone and iPad, has demanded more than $2.5 billion in damages and also requested that Samsung be prohibited from selling certain features. Samsung has counter-argued that Apple infringed wireless patents, and has countersued for hundreds of millions in damages.


Over the course of the trial and pre-trial activities, both sides presented a series of witnesses who provided a wide range of evidence, including litigation surveys. With all these experts and intensive media coverage, the trial provides insight into how survey evidence is used and rebutted in litigation. This post describes some of the survey evidence presented by both sides, along with descriptions of how the survey evidence was attacked or countered.


Before I begin, a disclaimer: this post relies on information and documents located through public searches. Also, my description of intellectual property surveys and related rebuttals does not mean that I agree with any particular approach.


Likelihood of Confusion Surveys

Dr. Kent Van Liere conducted two confusion surveys. The surveys measured whether the trade dress (look and design) of two Samsung smartphones are likely to be confused with the iPhone, and whether a Galaxy tablet computer is likely to be confused with the iPad.


Survey respondents were assigned to a test cell or a control cell. Respondents in the test cells viewed images showing one of two Samsung Galaxy smartphones (either the Fascinate or Galaxy S II 4G Touch), or a video showing the Samsung tablet computer (the Galaxy 10.1). The tablet computer was shown either branded or unbranded. Control cell respondents saw either a RIM BlackBerry Storm phone or a Barnes & Noble Nook Color e-reader.


After viewing the images or video, respondents were asked questions to measure whether they associated the trade dress with Apple. According to Dr. Van Liere, the measured percentages suggest that consumers are likely to confuse the look of Samsung devices with Apple or the iPhone.


To counter, attorneys for Samsung argued that users should have been given the actual devices to see and use in person, and that the views of the products should have included the backs, not just the front and sides. They also argued that the Nook, which is an e-Reader, was the wrong control for the Samsung tablet computer, and that a better control would have been a device closer to the iPad such as another tablet computer.


They also differentiated between a survey measuring confusion in a post-sale environment rather than at point of purchase. In other words, while the survey focused on conditions as described in the complaint, the attorneys pointed out that that the survey did not ask respondents whether they would purchase the devices.


There is a lot more detail on the back and forth in this minute by minute blog.


Secondary Meaning Survey

Hal Poret conducted an online survey to measure whether the trade dress of the iPhone and iPad have secondary meaning, ie whether respondents associate the trade dress of the iPhone and iPad with Apple or more generally with the category.


In the Poret survey, images of the iPhone or iPad were shown to consumers with icons blurred out and the home button covered. Survey questions measured whether respondents associated the trade dress with Apple.


At trial, Samsung argued that the results of the secondary meaning study would have been different if it was conducted at a different time. In documents filed prior to the trial, Samsung also argued that the universe for the survey was overly broad, and that the manner of the calculations was conducted incorrectly, resulting in an inflated measure of secondary meaning.



Litigation survey measuring the value of product features

Professor John Hauser, a well-known marketing professor at MIT and renowned expert on new product development, conducted a survey which measured how much consumers would be willing to pay for three patented smartphone features, such as scrolling and multi-touch. He assigned dollar values to those features using a technique called conjoint analysis. (Conjoint and other types of related studies are commonly used by managers to compare different types of features, different levels of features, or even different price points.)


Attorneys for Samsung counter argued that the results of the Hauser survey do not measure what consumers would actually pay for the technology, but simply their overall preferences. One author characterized this as the difference between measured and stated preferences. In other words, argued the attorneys, there might be a difference between what people say they want and how they actually behave in the marketplace.


Other survey evidence

This post covers only some of the survey evidence provided in this litigation. There were also internal surveys provided during discovery, such as a Samsung survey from 2011 which measured whether of consumers confused the Galaxy Tab with the iPad.


There were other litigation surveys and rebuttal reports as well. For example, Samsung commissioned their own surveys of secondary meaning and survey of likelihood of confusion, both relating to specific elements involved in the matter.


At the time I am writing this, the jury is deliberating, and many people are eagerly awaiting the verdict. However this matter is decided, surveys of confusion, secondary meaning, consumer response to pricing, and other topics have played a role in both the trial and the pre-trial proceedings.

Bruce Isaacson, President
Dr. Bruce Isaacson
MMR Strategy Group

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