MMR Client Objectives and Case Facts
Attorneys representing the defendants Amazon Logistics, Inc., Amazon.com Services LLC, and Amazon Technologies, Inc., (collectively, “Amazon”) retained MMR Strategy Group to provide a survey rebuttal to the plaintiff’s expert report on surveys measuring likelihood of confusion and consumer perception. New Prime alleged a forward confusion theory of infringement in this litigation, asserting that Amazon’s use of its Prime mark on trailers is likely to cause confusion between that mark and New Prime. MMR Strategy Group designed and conducted research measuring the likelihood of confusion between the two marks, and a fame and awareness survey for New Prime.
Case Facts and Procedural Background
MMR Strategy Group submitted a report and testified on behalf of the defendant about why the Plaintiff’s expert report measuring confusion was unreliable. First, we argued that the plaintiff’s expert measured reverse confusion among the wrong pool of respondents, because the expert interviewed users of shipping services, but not trucking. Second, the survey used an improper control, a truck with no logo at all. Lastly, the survey measured the use of the word Prime without specifying that the work should be evaluated in the context of shipping.
In response to the consumer perception survey, MMR argued that this survey was not relevant to the matter. The consumer perception survey did not measure likelihood of confusion, fame, secondary meaning, or dilution, but asked respondents what services they believed Amazon provides or will provide. Furthermore, the survey offered respondents answer choices that had correct and incorrect answers, which do not require a survey to answer. It also lacked a control.
MMR Research Objectives and Methodology
As a rebuttal to the plaintiff’s surveys, MMR Strategy Group also performed a likelihood of confusion survey and a fame and awareness survey. The confusion survey measured likelihood of confusion between Amazon’s Prime mark and New Prime, or “Prime Inc.” The fame and awareness survey measured whether “Prime Inc.” is famous or well-known as a name used by a company that provides transportation, trucking, or shipping services.
MMR Strategy Group Survey Design
MMR chose the “Eveready” format, which is a well-accepted format for likelihood of confusion surveys. However, our survey measured forward confusion–whether consumers were likely to confuse the Amazon Prime mark with New Prime, using a test image showing the logo for Amazon’s Prime on a trailer and a control image that was identical to the test image, except that the control image was digitally altered to replace the word “Prime” with the word “Premier.”
To provide an accurate measure of fame, MMR Strategy group measured the level of recognition for “Prime, Inc” against and compared to “UPS,” “FedEx,” “United Van Lines,” and others, showing each name as part of a logo that is used in the marketplace. In order to remove the effect of false positives, and to isolate the measurements associated with “Prime Inc.,” the survey also measured a control name, “Premier Inc.”
MMR Survey Findings and Court Reports
Fame and Awareness Findings
We conducted 496 interviews with respondents who represented the general consuming public of the U.S. Of those respondents shown the name “Prime Inc.,” 14.5% indicated that they had seen or heard of the name before today used by a company that provides transportation, trucking, or shipping services. However, the corresponding measure for the control name “Premier Inc.” was also 14.5%. After subtracting the control measure from the test measure, a survey best practice intended to filter out answers attributable to inattention or bias, the net fame measure for New Prime/Prime Inc. is 0.0%.
Likelihood of Confusion Findings
MMR conducted 492 interviews, including 244 interviews with respondents shown the test image and 248 interviews with respondents shown the control image. The forward likelihood of confusion measures in the survey are 0.0% for the test image and 0.0% for the control image, for a net likelihood of confusion measure of 0.0%. Additionally, responses indicated that many respondents recognized the Amazon Smile logo, even among respondents shown the Amazon Smile logo with the word “Premier.”
MMR’s research found that Prime Inc. is not famous, and consumers are unlikely to confuse Amazon’s Prime mark with New Prime. Additionally, both Plaintiff and Defendant provide different services to different customers, making it unlikely that they would have the opportunity to be confused when they interact in the marketplace. The court accepted the rebuttal provided by MMR Strategy Group and excluded the plaintiff’s survey as evidence.