[gnso-rpm-wg] Directly from INTA's website: What the TTAB has to say about sample size

Sat Sep 2 01:13:17 UTC 2017

I kindly disagree with Claudio. It is entirely possible to be behaving in a way that is unhelpful to the forward momentum of the working group but without necessarily violating standards of conduct. I think it's perfectly acceptable, especially for those of us who are sensitive about how long this working group is taking, to ask those who have stated their opinions repeatedly that the inputs of other members of the working group be thrown into the trash to move on to more substantial of discussions.  We have lots to do and the anti-trademark crowd's message that they think the inputs of others who disagree with their position are "trash" have already been made repeatedly clear. Those who worked hard to bring those inputs to the working group simply do not agree.

Let's get on with our real work now.

Sent from my iPhone

On Sep 1, 2017, at 7:25 PM, claudio di gangi <ipcdigangi at gmail.com<mailto:ipcdigangi at gmail.com>> wrote:

While I often disagree with George, I don't think its helpful to tell him to give it a rest.

If members feel that someone is acting in a manner that is incongruent with our standards of conduct, then please share those concerns with staff or the WG co-chairs so they can take action. There have been multiple emails from the co-chairs that participants are dropping off because of the hostile tone in our communications. This is not acceptable, nor should it be.

It's easy to forget in this environment, because we all care so deeply, that in the end, we are all on the same team. Let's try to reflect that reality as much as we can.

Best,
Claudio

On Fri, Sep 1, 2017 at 4:47 PM Kiran Malancharuvil via gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>> wrote:
George,

I don't know how many times Lori and others have to tell you that no one is trying to extrapolate a trend from the 33 responses.  (She mentioned it several times during the call...  but I think your focus was on the chat, unfortunately for you and ultimately for us.) We have all agreed that these 33 responses should be taken as 33 companies' input into the process, through INTA.  It's valuable information.

Give it a rest.  Your emails are badgering and unhelpful.

Best,

Kiran

Kiran Malancharuvil
Policy
MarkMonitor
415.222.8318 (t)
415.419.9138 (m)
www.markmonitor.com<http://www.markmonitor.com>

-----Original Message-----
From: gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org> [mailto:gnso-rpm-wg-bounces at icann.org<mailto:gnso-rpm-wg-bounces at icann.org>] On Behalf Of George Kirikos
Sent: Friday, September 01, 2017 2:40 AM
To: gnso-rpm-wg <gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>>
Subject: Re: [gnso-rpm-wg] Directly from INTA's website: What the TTAB has to say about sample size

Hi Jonathan,

We're not a tribunal --- no one suggested that we are. Although, we do have something in common with a tribunal, namely that we as a group take a lot of input/data/evidence, and are supposed to weigh that evidence in an objective and scientific manner to arrive at truths (or policy decisions/recommendations), unbiased by our own prior beliefs.

The entire point of that post was to demarcate (via an independent source that is hard to dispute --- hard to dispute basic math/statistics  --- a source I selected that INTA itself has published in their own journal, even) what is considered statistically valid findings, and what is considered merely anecdotal, what is considered insufficient sampling, etc.

No one is denying those 33 members of INTA who answered the survey had those experiences or opinions. What *is* in dispute is whether one should extract any truth about those experiences when talking about the larger populations, namely (1) all INTA members, and (b) all TM holders. Because of the issues with the study, it would not be credible to do so.

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/

On Fri, Sep 1, 2017 at 3:53 AM, jonathan matkowsky <jonathan.matkowsky at riskiq.net<mailto:jonathan.matkowsky at riskiq.net>> wrote:
> George,
>
> This is not a tribunal subject to US federal law under the Latham Act
> or any other statute for that matter. The survey here speaks for
> itself and was very useful from our perspective.
>
> Personally I wish we as an INTA member could have participated, but
> our opinion would have been consistent with what I saw to be the
> majority of those surveyed.
>
> Jonathan Matkowsky, VP - IP & Brand Security RiskIQ, Inc.
>
> On Thu, Aug 31, 2017 at 3:30 AM George Kirikos <icann at leap.com<mailto:icann at leap.com>> wrote:
>>
>> Hi folks,
>>
>> Before I went to bed, I made a note to myself to do a quick search to
>> see what TM practitioners would do in their TTAB statistical studies.
>> This morning, one of the first hits I found came from INTA's own
>> website, see below. In particular, note the statements (from footnote
>> 147):
>>
>> (a) "characterizing 62 interviews as “anecdotal evidence” that did
>> not lend themselves to statistical conclusions"
>>
>> (b) "finding 57 respondents raised a question “as to the overall
>> validity of the survey results"
>>
>> The INTA survey sample size of 33 is far below even those two
>> examples, and was closest to the next example:
>>
>> (c) "finding a survey of 25 pharmacists and doctors to be an
>> insufficient sampling"
>>
>> (start of excerpt, sorry for the formatting, footnotes are #144 to
>> #147; easier to read the PDF I link to)
>>
>> The Trademark Reporter (The Law Journal of the International
>> Trademark Association), September-October, 2014.
>>
>> https://www.inta.org/TMR/Documents/Volume%20104/vol104_no5_a5.pdf
>>
>> C. Representative Samples (page number 1172)
>>
>> Probability and nonprobability methods may be used to select the
>> sample from the universe of possible respondents.
>> However, if the sample of respondents is not representative of the
>> universe from which it was selected, it will be accorded little
>> weight.144 The number of respondents sampled must be large enough for
>> the results to be reliable. The overall sample size for a survey will
>> depend on the number of disputed marks tested and whether the survey
>> includes any control groups. Surveys in Board proceedings often
>> interview between 100 and 300 respondents about each mark or stimulus
>> examined.145 In some instances, the Board has considered survey
>> samples with fewer than 200 respondents to be small,146 and samples
>> with fewer than 100 respondents routinely have been disfavored.147
>>
>> And here are the footnotes:
>>
>> 144. iMedica Corp. v. Medica Health Plans, 2007 WL 1697344, at *5
>> (T.T.A.B. June 7, 2007) (“We also find that the survey results are
>> questionable because the survey did not fairly sample the universe of
>> possible respondents and is biased in MHP’s favor.”) and Am. Home
>> Prods. Corp. v. B.F. Ascher & Co., Inc., 166 U.S.P.Q. 61 (T.T.A.B.
>> 1970) (“[T]he persons to be interviewed were not chosen on the basis
>> of a sampling technique but solely because they were known to opposer
>> . . .”), aff’d, 473 F.2d 903 (C.C.P.A. 1973).
>>
>>
>> 145. Facebook, Inc. v.
>> Think Computer Corp., 2013 WL 4397052, at *14 (T.T.A.B. July 23,
>> 2013) (“Dr. Ford supervised . . . interviews: 270 in the test cell
>> and 272 in the control cell.”); PepsiCo, Inc. v. Pirincci, 2012 WL
>> 2930650, at
>> *7 (T.T.A.B. June 25, 2012) (“In total, 404 consumers participated in
>> the survey . . . with 200 consumers participating in one of two ‘test
>> cells’ and 204 consumers in one of two ‘control cells . . .’”); Sara
>> Lee Corp. v. Mahmoud, 2007 WL 4663353, at *5 (T.T.A.B. Dec. 27, 2007)
>> (“[S]urvey respondents in the test group (199 women age 18 and older
>> from around the country) were shown a stimulus card . . .”); AVA
>> Enters. Trading Co., Inc. v. Audio Boss USA, Inc., 77 U.S.P.Q.2d
>> 1783,
>> 1786 (T.T.A.B. 2006) (“A test group of 100 respondents [was] shown a
>> card. . . . A control group of 100 respondents [was] shown a card . .
>> .”). Note, the test group may include more respondents than the
>> control group. See Anheuser-Busch, Inc. v. Mambo Seafood #1, Inc.,
>> 2008 WL 4674603, at *7 (T.T.A.B. Sept. 22, 2008) (“The survey was
>> taken of 296 individuals, 200 of whom were exposed to applicant’s
>> mark with the remaining 96 persons comprising a control group that
>> was exposed to the fictitious mark . . .”).
>>
>> 146. 7-Eleven, Inc. v.
>> Morrison, 2008 WL 2385970, at *13 (T.T.A.B. June 2, 2008) (finding
>> 162 survey respondents to be “small,” but according opposer’s survey
>> some weight); Kohler Co. v. Kohler Homes, 2008 WL 4877069, at *9 (T.T.A.B.
>> Nov. 4, 2008) (“[T]he number of actual respondents to the KOHLER
>> HOMES and KOHLER ASSOCIATES ARCHITECTS surveys is small, i.e., 164
>> and 163, respectively.”).
>>
>>
>> 147. Clear Choice Holdings LLC v. Implant Direct Int’l, 2013 WL
>> 5402082, at *8 (T.T.A.B. Aug. 26, 2013) (finding 90 respondents for
>> each mark tested to be “a small number”); Bridgestone/Firestone N.
>> Am. Tire, LLC v. Silverstone Berhad, 2003 WL 1559659, at *4 (T.T.A.B.
>> Mar. 2003) (characterizing 62 interviews as “anecdotal evidence” that
>> did not lend themselves to statistical conclusions); iMedica Corp. v.
>> Medica Health Plans, 2007 WL 1697344, at *4-*5 (T.T.A.B. June 7,
>> 2007) (finding 57 respondents raised a question “as to the overall
>> validity of the survey results”); Am. Home Prods. Corp. v. B.F.
>> Ascher & Co., Inc., 166 U.S.P.Q. 61, 62 (T.T.A.B.
>> 1970) (finding a survey of 25 pharmacists and doctors to be an
>> insufficient sampling), aff’d, 473 F.2d 903 (C.C.P.A. 1973); Guardian
>> Life Ins. Co. v. England, 2002 WL 31173415, at *3 (T.T.A.B. Sept.
>> 2002) (finding it inappropriate to draw conclusions based on a survey
>> with only three respondents).
>>
>> (end of excerpt)
>>
>> Of course, the above focused on sample size, but let's not forget the
>> other part, about the non-representative nature of sample. Re-read
>> the part above that said:
>>
>> "However, if the sample of respondents is not representative of the
>> universe from which it was selected, it will be accorded little
>> weight"
>>
>> That's exactly the second problem experienced with this INTA survey,
>> as  previously discussed.
>>
>> Q.E.D.
>>
>> Have a nice day.
>>
>> Sincerely,
>>
>> George Kirikos
>> 416-588-0269
>> http://www.leap.com/
>> _______________________________________________
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>> gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
>> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
>
> --
> Jonathan Matkowsky
>
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