In September 2013, Rhonda Harper was hired by Black & Decker to complete a trade dress infringement survey to determine whether likelihood of confusion existed, and if so to what extent, among consumers regarding the source of Positec’s Rockwell® product.
Harper’s survey results were not favorable to Black & Decker’s position in the case. Ultimately, they tossed her survey and hired a different expert to complete a separate survey.
First, The Win
Using the results of the new expert’s survey, Black & Decker won the case and was awarded $53.9 million. Indeed, Black & Deckers’s expert testimony and survey was the “linchpin” case (Black & Decker Corp. v. Positec USA Inc., September 11, 2017, Dow, R.).
Harper’s results were so conclusively different than the new expert’s survey results that she had a hard time reconciling it: “It just didn’t make any sense based on what I knew.”
Then, The Predictable Reversal
Then, it happened: (September 12, 2017) Judge Erases Black & Decker $54M Trade Dress Win “because Plaintiff’s case was constructed upon a hopelessly flawed consumer survey. source: “https://www.jdsupra.com/legalnews/flawed-consumer-survey-wipes-out-54-69481/
Rhonda Harper’s Survey Structure and Opinion
The likelihood of confusion survey conducted in this matter employed a scientific experimental survey design consisting of two survey cells: (1) a test or experimental survey cell designed to measure likelihood of confusion, if any, with respect to the source, authorization or approval of, or business affiliation of Defendant’s product sold in conjunction with the Rockwell® trade dress; and (2) a control survey cell designed to measure the extent of mismeasurement in the test cell survey results. Both cells deployed a “ghost” brand to identify mismeasurement. This survey was designed to conform to the survey design preference of the Patent and Trademark Office Trial and Appeal Board.
In total, 1,155 interviews were completed in this likelihood of confusion survey; in the test cell 850 and 305 in the control cell. The survey stimuli utilized in the survey were either a computer screen showing Defendant’s package trade dress (test cell) or a computer screen showing the Plaintiff’s package trade dress (control cell). The brand names in each trade dress image were disguised.
Rhonda Harper’s Original Opinion
“It is my considered opinion, based upon my education, background, and professional experience, and based upon my review and analysis that the survey results do not support a finding of likelihood of confusion. The survey results evidence that the relevant universe of potential purchasers of power tools bearing the Rockwell® trade dress are not likely to be confused or deceived by the belief that it is that of DeWalt®.”source: Rhonda Harper Report