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

Sat Sep 2 03:33:22 UTC 2017

I agree with you generally except that the Trademark Reporter (on which I
have sat on its editorial board in the distant past) collects very
particular standards designed to meet very different evidentiary
considerations than are at stake in what's at issue.

And I don't think we should get distracted by the extent to which the
survey reflects all INTA members as for many, it carries extraordinary
significance without needing to get bogged down any further. If it doesn't
for you, fine but frankly, participating regularly  in this group has been
nearly impossible given all the melodrama and pontification on a regular
basis that is more harmful than it's worth to the group as a whole.

If you need more anectodal evidence I'm happy to provide, and have told you
as an INTA member that didn't participate in the survey that the majority
reflects our views too, and the views of other INTA members and their
customers, many of whom as smaller brand holders based on the lowest end of
the revenue spectrum surveyed by INTA members, have spent upward of $150k
in defensive registrations specifically related to the new gTLD launch,
excluding the actual registration fees payable to the registrar.

Best regards
Jonathan

On Fri, Sep 1, 2017 at 2:39 AM George Kirikos <icann at leap.com> wrote:

> 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> 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> 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/
> >> _______________________________________________
> >> gnso-rpm-wg mailing list
> >> gnso-rpm-wg at icann.org
> >> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg
> >
> > --
> > Jonathan Matkowsky
> >
> > *******************************************************************
> > This message was sent from RiskIQ, and is intended only for the
> designated
> > recipient(s). It may contain confidential or proprietary information and
> may
> > be subject to confidentiality protections. If you are not a designated
> > recipient, you may not review, copy or distribute this message. If you
> > receive this in error, please notify the sender by reply e-mail and
> delete
> > this message. Thank you.
> >
> > *******************************************************************
> _______________________________________________
> gnso-rpm-wg mailing list
> gnso-rpm-wg at icann.org
> https://mm.icann.org/mailman/listinfo/gnso-rpm-wg

-- 
Jonathan Matkowsky

-- 
*******************************************************************
This message was sent from RiskIQ, and is intended only for the designated 
recipient(s). It may contain confidential or proprietary information and 
may be subject to confidentiality protections. If you are not a designated 
recipient, you may not review, copy or distribute this message. If you 
receive this in error, please notify the sender by reply e-mail and delete 
this message. Thank you.

*******************************************************************
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/gnso-rpm-wg/attachments/20170902/9fd93f20/attachment-0001.html>