Contract analysis

I. INTRODUCTION AND QUALIFICATIONS OF DECLARANT A. Identity and Affiliation

1. My name is Dr. Elaine Furman. I am over the age of 18, competent to testify in this matter, and make this Declaration based upon my own personal knowledge, professional expertise, and the research and analysis described herein. Unless otherwise stated, if called as a witness, I could and would testify competently to the facts set forth in this Declaration.

2. I am the Principal and founder of Lakeshore Brand Consulting LLC, a consumer research and brand strategy consultancy located at 333 West Wacker Drive, Suite 1100, Chicago, Illinois 60606. Lakeshore Brand Consulting specializes in consumer perception research, brand equity measurement, trademark survey design and analysis, and litigation consulting in matters involving trademark infringement, trade dress, false adv

3. I have been retained by Calderwood & Harkness LLP, 1251 Avenue of the Americas, 40th Floor, New York, New York 10020, counsel for Plaintiff Meridian Consumer Brands LLC ("MCB" or "Plaintiff"), to design, conduct, and analyze a consumer confusion survey in connection with this litigation. My engagement, including the scope of my assignment, the materials I reviewed, and the opinions I have reached, are described in

4. I received my Bachelor of Arts degree in Psychology from the University of Michigan, Ann Arbor, in 1995, graduating summa cum laude with departmental honors in Cognitive Psychology. I subsequently earned a Master of Arts degree in Applied Psychology from Lakewood University in Evanston, Illinois, in 1997, where my master's thesis examined the role of brand familiarity in consumer information-processing under condi

5. During my doctoral studies, I received additional training in experimental design, multivariate statistics, psychometrics, survey methodology, and sampling theory. I completed advanced coursework in econometrics and causal inference as part of an interdisciplinary program with the Department of Statistics at Lakewood University. C. Professional Experience

6. I have more than twenty years of professional experience in consumer behavior research, brand perception studies, and trademark survey design, execution, and analysis. My career has been devoted to the application of rigorous social-science research methodology to questions of consumer perception that arise in intellectual property and unfair competition litigation.

7. Prior to founding Lakeshore Brand Consulting in 2010, I served as a Senior Vice President at Empirica Research Group, a national litigation consulting firm, from 2005 through 2010, where I directed the firm's Trademark and Brand Research Practice. Before joining Empirica, I held the position of Assistant Professor of Marketing at the Kellogg-adjacent Lakewood University School of Management from 2001 through 2005,

8. Over the course of my career, I have designed, conducted, and analyzed consumer confusion surveys in more than seventy-five (75) federal trademark cases. These engagements have involved a wide range of product and service categories, including consumer packaged goods, food and beverages, personal care products, household goods, apparel, financial services, technology products, pharmaceuticals, and retail services.

9. I have published extensively in peer-reviewed academic journals on topics relating to survey methodology, consumer perception, brand confusion, and the reliability of survey evidence in trademark litigation. My publications include articles in the Journal of Marketing Research, the Journal of Consumer Research, the Journal of Consumer Psychology, the Trademark Reporter, and the American Business Law Journal, among

10. I have been qualified as an expert witness and have provided testimony — including deposition testimony, expert reports, and trial or hearing testimony — in federal courts in numerous jurisdictions, including the United States District Court for the Southern District of New York, the United States District Court for the Northern District of Illinois, the United States District Court for the Central District of Ca

11. I am a member of the American Marketing Association, the American Statistical Association, the Association for Consumer Research, and the International Trademark Association. I serve on the editorial review board of the Journal of Consumer Psychology and have served as an ad hoc reviewer for the Journal of Marketing Research and the Trademark Reporter. D. Engagement and Compensation

12. I was retained in this matter pursuant to an engagement letter between Lakeshore Brand Consulting LLC and Calderwood & Harkness LLP dated October 5, 2022. Pursuant to the terms of that engagement, I was asked to design, conduct, and analyze a consumer confusion survey to assess whether consumers are likely to confuse Brindoval Home Goods Inc.'s "MERIDIAN FRESH" household cleaning products with MCB's "MERIDIAN" an

13. The total fee for my engagement — encompassing survey design, programming, pretesting, administration, response coding, statistical analysis, and the preparation of this Declaration — is $87,500 (inclusive). This fee is based upon the scope and complexity of the work required and is consistent with my customary billing practices for engagements of comparable scope. My compensation is not contingent in any way upo

14. My curriculum vitae, which sets forth my educational background, professional positions, publications, prior expert testimony, professional affiliations, and other relevant qualifications, is attached hereto as Exhibit A and is incorporated by reference into this Declaration. E. Materials Reviewed

15. In connection with my engagement in this matter, I reviewed and considered the following materials, among others: (a) MCB's federal trademark registrations for its MERIDIAN marks, including: (i) U.S. Registration No. 4,218,506 for the mark MERIDIAN in standard character form, registered on the Principal Register on August 14, 2012, in International Class 3 for cleaning preparations, namely, all-purpose cleaners,

16. In forming my opinions, I relied upon the materials listed above, my professional training and experience, and the survey data collected and analyzed as part of this engagement. The materials I reviewed and relied upon are of the type reasonably relied upon by experts in my field.

II. PURPOSE OF THE DECLARATION

17. I was retained to design, conduct, and analyze a consumer confusion survey to assess whether consumers are likely to believe that Brindoval Home Goods Inc.'s "MERIDIAN FRESH" household cleaning products are made by, affiliated with, sponsored by, or otherwise connected with the maker of MCB's "MERIDIAN" and "MERIDIAN CLEAN" household cleaning products.

18. The survey was specifically designed to provide evidence relevant to the likelihood-of-confusion inquiry under the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a). Likelihood of confusion is the central question in a trademark infringement analysis, and survey evidence is widely recognized as the most direct and probative form of evidence bearing on whether consumers are likely to be confused as to the source, spons

19. In this Declaration, I present the design, methodology, execution, results, and conclusions of the consumer confusion survey I conducted in October 2022. I also explain the basis for my opinion that the survey results demonstrate a high likelihood of consumer confusion between Brindoval's MERIDIAN FRESH products and MCB's MERIDIAN and MERIDIAN CLEAN products.

III. BACKGROUND: THE MARKS AND PRODUCTS AT ISSUE A. Plaintiff's Marks and Products

20. Based on the materials I reviewed, MCB has manufactured and sold household cleaning products under the MERIDIAN and MERIDIAN CLEAN marks continuously since approximately 2011. MCB's MERIDIAN-branded cleaning product line includes all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners — all classified in International Class 3 (cleaning preparations) under the Nice Classification system.

21. MCB's MERIDIAN cleaning products are distributed through major grocery chains, mass-merchandise retailers, club stores, and e-commerce platforms throughout all fifty states. The distribution footprint of MCB's MERIDIAN-branded products is national in scope, and the products are available to and purchased by a broad consumer base of household cleaning product purchasers across the United States.

22. According to financial data provided by MCB's counsel, MCB's MERIDIAN-branded cleaning product line generated approximately $94.5 million in revenue in fiscal year 2022, representing approximately 24.4% of MCB's total company revenue of approximately $387 million. This revenue figure reflects the significant commercial presence and market penetration of the MERIDIAN-branded cleaning product line.

23. MCB has made substantial investments in advertising and promoting its MERIDIAN-branded cleaning products over the life of the brand. Cumulative advertising and promotional expenditures attributable to the MERIDIAN cleaning product line from 2011 through 2022 total approximately $47.2 million, representing an average annual advertising investment of approximately $3.93 million per year. These expenditures have bee

24. MCB holds three federal trademark registrations for its MERIDIAN marks on the Principal Register of the United States Patent and Trademark Office, as described in Paragraph 15(a) above. These registrations establish MCB's exclusive right to use the registered marks in commerce in connection with the identified goods and provide constructive nationwide notice of MCB's ownership of and rights in the marks. See 15 U

25. In approximately July 2022, Brindoval Home Goods Inc. ("Brindoval") launched a private-label line of household cleaning products under the mark MERIDIAN FRESH. Brindoval's MERIDIAN FRESH product line includes all-purpose spray, glass cleaner, disinfecting wipes, and dish soap — products that are also classified in International Class 3 as cleaning preparations, and that directly overlap with several of the specif

26. Brindoval sells its MERIDIAN FRESH products in all 148 of its retail store locations, which are situated across twelve Midwestern and Mountain West states, and through Brindoval's e-commerce platform at www.crestviewhomegoods.com, which is accessible to consumers nationwide. Accordingly, the geographic reach of Brindoval's MERIDIAN FRESH products overlaps with and is encompassed within the broader geographic foot

27. On May 12, 2022, Brindoval filed U.S. Trademark Application Serial No. 97/412,558 seeking registration of the mark MERIDIAN FRESH in International Class 3 for cleaning preparations. The application was published for opposition on September 6, 2022. C. Trade Dress Similarities

28. In addition to the textual similarity of the marks, I observed notable similarities in the overall trade dress and packaging of the respective products. MCB's registered stylized MERIDIAN logo, protected under U.S. Registration No. 5,589,320, incorporates a distinctive wave device as a design element associated with the MERIDIAN brand. The packaging for MCB's MERIDIAN-branded cleaning products prominently feature

29. Brindoval's MERIDIAN FRESH packaging likewise features a stylized wave device and employs a teal-and-white color scheme that is strikingly similar to MCB's trade dress. The products share the same retail environment — the household cleaning aisle — and are offered in similar packaging form factors, including spray bottles and wipe canisters, at comparable price points. These overlapping trade-dress elements compo

30. While my survey was principally designed to measure confusion arising from the mark as a whole (word mark and trade dress together, as encountered by consumers in the marketplace), the control stimulus I employed — described in detail below — was specifically designed to isolate the incremental confusion attributable to the "MERIDIAN" element of the accused mark.

IV. SURVEY METHODOLOGY A. Survey Design: Squirt-Design / Modified Eveready Protocol

31. The survey I designed and conducted in this matter employed a Squirt-design, also known as a modified Eveready protocol. This survey format takes its name from the landmark decision in Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366 (7th Cir. 1976), and its subsequent refinement in Squirt Co. v. Seven-Up Co., 628 F.2d 1086 (8th Cir. 1980), and has become one of the most widely accepted and frequently employ

32. In a Squirt-design / modified Eveready survey, respondents are shown a depiction of the accused product (or the accused product itself) and are asked a series of open-ended questions designed to elicit whether they believe the product is made by, sponsored by, or affiliated with a particular source, without directing the respondent's attention to the senior mark or suggesting any particular answer. The format is

33. This survey format is well-accepted in the Second Circuit and throughout the federal courts as a reliable and appropriate methodology for measuring likelihood of confusion in Lanham Act cases. See, e.g., Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 567–69 (S.D.N.Y. 2007) (accepting Eveready-format survey as probative of likelihood of confusion); Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 388 (2

34. A critical feature of any well-designed trademark confusion survey is the use of a control stimulus to measure the baseline level of "noise" — that is, the proportion of respondents who give a confused response for reasons unrelated to the trademark at issue. The use of a control permits the calculation of a "net confusion rate," which isolates the confusion attributable specifically to the accused mark.

35. Test Stimulus. The test stimulus in this survey consisted of a high-quality, full-color digital reproduction of Brindoval's MERIDIAN FRESH all-purpose spray packaging as it appeared in commerce at the time of the survey. The reproduction depicted the front panel of the product packaging, including the MERIDIAN FRESH word mark in its distinctive typeface, the teal-and-white color scheme, the stylized wave device,

36. Control Stimulus. The control stimulus was a modified version of the same MERIDIAN FRESH all-purpose spray packaging in which the mark "MERIDIAN FRESH" was replaced with the fictitious mark "HORIZON FRESH." All other elements of the packaging — including the teal-and-white color scheme, the layout and positioning of text, the stylized wave device, product descriptors, and other visual elements — were held constan

37. The purpose of the control stimulus is to establish a baseline measure of noise. Any confusion observed in the control group reflects responses that would occur regardless of the specific mark used — i.e., confusion driven by factors other than the "MERIDIAN" element of the accused mark. The net confusion rate is then calculated by subtracting the control group's confusion rate from the test group's confusion rat

38. Both stimuli were prepared by a professional graphic designer under my direction and were pretested with a small convenience sample to confirm that the modifications to the control stimulus were seamless and did not introduce any artifacts that could affect respondent perceptions. The designer confirmed that the control stimulus was visually indistinguishable from the test stimulus in all respects other than the

39. Target Universe. The target universe for this survey consisted of adult consumers (age 18 and older) residing in the United States who had purchased household cleaning products within the past twelve months. This universe was selected because it represents the population of consumers who are the relevant purchasing public for the products at issue — i.e., the consumers who are most likely to encounter both MCB's

40. Screening Criteria. Prospective respondents were screened at the outset of the survey to confirm that they met the following inclusion criteria: (a) The respondent was 18 years of age or older; (b) The respondent was the primary or a shared decision-maker for purchasing household cleaning products for his or her household; and (c) The respondent had personally purchased at least one household cleaning product (su

41. Respondents who did not satisfy all three screening criteria were politely thanked for their time and terminated from the survey without further participation. Respondents were not screened for geographic location beyond confirming that they were residents of the United States, consistent with the fact that MCB distributes its MERIDIAN-branded cleaning products on a nationwide basis and Brindoval's e-commerce pla

42. Respondent Recruitment. Respondents were recruited from an online consumer panel maintained by Quorum Research Panel Services, a reputable third-party panel provider with extensive experience in providing research samples for academic and commercial survey research. The use of an online consumer panel is a widely accepted and common practice in consumer confusion surveys and provides access to a large, diverse po

43. Sample Size. A total of 612 qualifying respondents completed the survey. These respondents were randomly assigned to one of two conditions: (a) Test Group: Approximately 306 respondents were randomly assigned to the test condition and were shown the MERIDIAN FRESH test stimulus. (b) Control Group: Approximately 306 respondents were randomly assigned to the control condition and were shown the HORIZON FRESH contro

44. The random assignment of respondents to the test and control conditions was performed automatically by the survey software using a randomization algorithm, ensuring that assignment was not influenced by any respondent characteristic. Random assignment is essential to the validity of the survey because it ensures that any observed differences in confusion rates between the test and control groups can be attributed

45. The sample size of 612 respondents (approximately 306 per condition) was determined in advance based on a power analysis conducted to ensure that the survey would have sufficient statistical power to detect a meaningful difference in confusion rates between the test and control groups. Specifically, the sample size was designed to provide at least 80% statistical power to detect a difference in confusion rates of

46. The survey instrument employed a sequence of open-ended questions, carefully worded to avoid leading, suggestive, or biasing language. Open-ended questions are the preferred question format in trademark confusion surveys because they require respondents to generate their own answers rather than selecting from a predetermined list, thereby reducing the risk of demand effects and artificial inflation of confusion r

47. After being shown the applicable stimulus (either the MERIDIAN FRESH test stimulus or the HORIZON FRESH control stimulus) and being given adequate time to examine it, respondents were asked the following questions in the following fixed order: Question 1 (Source Identification): "Who do you think makes or puts out this product?" Question 2 (Basis Probing): "What makes you say that?" Question 3 (Affiliation/Sponso

48. These questions follow the standard question sequence used in Squirt-design / modified Eveready surveys. Question 1 is the core source-identification question, designed to elicit the respondent's initial belief about the source or origin of the product. Question 2 probes the basis for that belief, providing insight into the cognitive reasoning underlying the respondent's answer. Question 3 is the affiliation/spon

49. The questions were administered in a fixed order to all respondents in both the test and control groups, ensuring consistency across conditions. The questions were not preceded by any reference to MCB, Meridian, Meridian Clean, or any other specific brand name, and the survey instrument did not contain any information that would alert respondents to the purpose of the survey or the identity of the parties involve

50. In addition to the core confusion questions, the survey instrument included demographic and product-usage classification questions (e.g., age, gender, household income, frequency of household cleaning product purchases, and preferred retail channels for purchasing cleaning products). These classification questions were asked after the core confusion questions to avoid any priming or anchoring effects. The complet

51. The survey was conducted in October 2022. Specifically, data collection took place between October 10, 2022, and October 17, 2022. The survey was administered online via a secure survey platform operated by Quorum Research Panel Services.

52. Each respondent completed the survey individually, on his or her own personal computer, tablet, or smartphone, without the involvement or interference of any other person. Respondents were not given a time limit for completing the survey but were instructed to review the stimulus carefully before answering the questions. The average completion time for the survey was approximately eight minutes, which is consiste

53. All responses to the open-ended questions were recorded verbatim — that is, the respondent's exact words were captured and preserved in the survey database. Following the completion of data collection, the verbatim responses were coded (classified) by trained coders under my direct supervision, according to a detailed coding protocol that I developed in advance of the coding process.

54. Coding Protocol. The coding protocol established clear and objective criteria for classifying each respondent's responses as either "confused" or "not confused." Specifically: (a) A respondent was classified as "confused" if, in response to Question 1 (source identification) or Question 3 (affiliation/sponsorship), the respondent identified MCB, Meridian, Meridian Clean, or the maker of Meridian or Meridian Clean

55. The complete coding protocol, including the specific decision rules and examples used to train and guide the coders, is attached hereto as Exhibit E. F. Quality Controls

56. I implemented a number of quality-control measures to ensure the integrity and reliability of the survey data: (a) Attention-Check Questions. The survey instrument included attention-check questions (also known as "trap questions") at strategic points in the survey designed to identify respondents who were not paying adequate attention to the survey materials. For example, one attention-check question asked respo