Recent presentation I gave at the UNH Franklin Pierce School of Law

1. Will Bad Spaniels’ New “Disclaimer” Keep
Him Out of the Doghouse?
J. Michael Keyes
Consumer Survey Expert & IP Litigation Partner
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2. My Background
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• IP Litigation Partner, Dorsey
in Seattle
• Master’s Degree in Survey
Research & Data Analysis
• Consumer Survey Researcher
& Analyst

3. 3
Question Presented:
In the wake of the Court’s
decision in Jack Daniel’s
Properties v. VIP Products, can
a point of sale “disclaimer”
effectively negate confusion in
the marketplace?

4. At Trial, Jack Daniel’s Conducted Online Survey Using This Toy and Hangtag
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“This product is not
affiliated with Jack Daniel
Distillery.”
Dr. Gerald Ford

5. To Qualify a Respondent Had to Meet The Following Criteria:
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 21 years of age or older
 Likely to purchase a
dog toy in the next 6
months
 Had to acknowledge
that you could read the
hangtag

6. A Representative Sample Was Selected From The Survey Population
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 211 respondents
participated in Dr.
Ford’s study
 44% male / 56 %
female

7. Respondents Asked The Customary “Ever-Ready” Survey Questions:
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1. Who or what company makes or
puts out this product?
2. What other product or products
are made or put out by this
company?
3. Do you believe this product is
being made or put out with the
approval of another company?
4. Do you believe that whoever
makes or puts out this has a
business affiliation or connection
with another company?

8. Dr. Ford’s Results…
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62 out of 211 survey
respondents answered
“Jack Daniel’s” in response
to one or more of the four
“Ever-Ready” questions.
29% “Net” Confusion Rate
Trial court gave Dr. Ford’s
survey considerable weight
in Jack Daniel’s favor at
trial.

9. Bad Spaniels Ramped Up Its Efforts to “Disclaim” Any Affiliation with
Jack Daniel’s
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Modified Hang Tag

10. 10

11. We Conducted a Survey To Test Whether
The Modified Hang Tag Would Reduce The Amount of Confusion
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Original Hang Tag and Bottle Yielded
29% Confusion
What Would the Modified Hang Tag
and Bottle Yield?

12. We Replicated Dr. Ford’s Survey…
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 Respondents had to be
21 years of age or older
 Likely to purchase a dog
toy

13. A Representative Sample Was Selected From The Survey Population
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216 respondents
participated
 44% male / 56 %
female
Had to acknowledge
that you could read
the hangtag

14. Respondents Exposed to Toy and Modified Tag and Asked Identical Questions
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1. Who or what company makes or
puts out this product?
2. What other product or products
are made or put out by this
company?
3. Do you believe this product is
being made or put out with the
approval of another company?
4. Do you believe that whoever
makes or puts out this has a
business affiliation or connection
with another company?

15. And Our Results…
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71 out of 216 survey
respondents still
answered “Jack Daniel’s”
in response to one or
more of the four “Ever-
Ready” questions.
33 %“Net” Confusion Rate

16. And Our Results…
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71 out of 216 survey
respondents still
answered “Jack Daniels”
in response to one or
more of the four “Ever-
Ready” questions.
33 %“Net” Confusion Rate
And the “Because I am
smart” directive?

17. And Our Results…
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71 out of 218 survey
respondents still
answered “Jack Daniels”
in response to one or
more of the four “Ever-
Ready” questions.
33 %“Net” Confusion Rate
And the “Because I am
smart” directive?
5 Respondents!

18. About Half of the Confused Respondents in Both Surveys
Answered “Jack Daniels” in Response to Two or More of the Questions
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30 out of 62 or 48% 38 out of 71 or 53.5%

19. On Just the “Authorization or Approval” Question
We Saw Big Discrepancies
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5 out of 71 Respondents
(or 7%) believed Bad
Spaniels needed Jack
Daniel’s “approval” or
“authorization”
Original survey
23 out of 62 Respondents
(or 37%) believed Bad
Spaniels needed Jack
Daniel’s “approval” or
“authorization”
Follow-up survey

20. But on Just the “Business Affiliation” Question
We Saw Big Discrepancies The Other Direction
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21 out of 71 Respondents
(or 30%) believed there
was a business affiliation
or connection between the
two
Original survey
4 out of 62 Respondents
(or 6%) believed there was
a business affiliation or
connection between the
two
Follow-up survey

21. Respondents Really Focused on Visual Similarities…
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• “Because it looks exactly like a
bottle of Jack Daniels!”
• “Looks quite similar”
• “The way it looks like a bottle
of whiskey”
• “The toy is shaped and has
similar characteristics as the
original Jack Daniels whiskey
bottle.”

22. So, What Are The Takeaways Here?
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1. The “disclaimer” appears to have significantly
decreased the number of consumers that believed
Bad Spaniels needed “authorization or approval.”
(37% vs. 7%)
2. But, the “disclaimer” appears to have significantly
increased the number of consumers that,
nevertheless, believed there was a business
“affiliation or connection” between the two
companies. (6% vs. 30%)
3. Thus, the overall “net confusion” numbers stayed
consistent at around 30%. (29% vs. 33%)

23. Will This Keep Bad Spaniels Out of the Doghouse?
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