Overview:
MMR Strategy Group survey expert Dr. Justin Anderson testifies in rebuttal to surveys submitted to the Trademark Trial and Appeal Board in a matter related to smoking products. Did a bad control send the survey’s reliability up in smoke?
Case Facts and Procedure
Shenzhen Woody Vapes Technology Co., Ltd., applied for a trademark for electronic cigarettes and accessories for electronic cigarettes. The trademark showed the letters TPP in stylized form (“TPP and design mark”).
Top Tobacco, L. P. (“TOP”), is another brand that is a manufacturer of “smokers’ articles, including tobacco, cigarette papers, cigarette paper booklets, cigarette filters, cigarette tubes, and cigarette rolling, injector, and making machines.” TOP holds trademark registrations for these products using the marks TOP and TOP-O-MATIC. In June of 2021, Top Tobacco filed a formal opposition to Shenzhen’s trademark application with the Trademark Trial and Appeal Board (TTAB), alleging that consumers were likely to be confused and believe that TPP products were associated with TOP and TOP-O-MATIC, due to the use of the letters T and P in its TPP and design mark.
Shenzhen retained a consumer survey expert, who conducted two surveys, dated March 7, 2022, and March 23, 2023, to measure the likelihood of confusion between the brands. TOP retained Dr. Justin Anderson, Senior Vice President of MMR Strategy Group, to rebut both likelihood of confusion surveys.
Methodology for Both Surveys
Shenzhen’s expert employed the Squirt survey format for measuring likelihood of confusion. In this survey format, respondents are exposed to a senior mark, then shown a group of other marks, including the junior mark. Then, they are asked questions about the relationship or lack thereof between the senior mark and the other marks.
Respondents qualified for the Shenzhen expert’s first survey if they answered that they were likely to personally purchase smoking products in the next six months. The second section of the survey showed respondents the TOP mark as plain text. In a later section of the survey, respondents were shown three other brand names for smoking products with designs: Marlboro, DOO, and either TPP and design or PTP, a control brand, displayed using the same design as TPP.
The survey found that 23.6% of the test group’s respondents believed that smoking products using the TPP and design mark were made or put out by, affiliated with, or permitted by the same company that uses the TOP brand name. Of the control group, 20.1% believed the same, resulting in a net confusion rate of 3.5%.
Like the first survey, the second survey from Shenzhen’s expert was conducted using the Squirt format. Also like the first survey, it included three sections: It first showed the TOP logo, and then showed marks for Marlboro, DOO and TPP (test) or PTP (control). However, the TPP and PTP marks were shown in plain text, not with a design, in the second survey.
The second survey found that 29.4% of test group respondents believed that smoking products using the TPP mark were made or put out by the same company that uses the TOP brand name, had a business affiliation with TOP, or needed permission from the company that uses TOP. Among the control group, 27.5% provided these answers, resulting in a net confusion measure of 1.9%.
MMR Strategy Group Rebuttal
Dr. Anderson wrote that both surveys failed to provide any reliable measure of confusion. Among other reasons, he argued that the surveys’ controls did not adhere to the standards set forth by the TTAB, because they included both of the letters in dispute, T and P, making it too similar to the disputed mark. That similarity inflated the control measure and reduced the net measure of confusion in a manner biased in favor of Shenzhen.
Did MMR Strategy Group’s Rebuttal Evidence Clear the Air?
The TTAB ruled in favor of MMR’s client, Top Tobacco. In its opinion, the TTAB agreed with Dr. Anderson that the opposing surveys used an inappropriate control in the form of PTP, and wrote that the resulting levels of survey “noise” were troubling. It declined to give weight to the surveys.
When the TTAB has provided specific guidance, trademark holders are best off following that guidance. If you need survey evidence, or a rebuttal of another party’s survey, as part of a trademark dispute, contact MMR Strategy Group to discuss how we can help.