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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DECLARATION OF DR. ELAINE FURMAN, Ph.D., IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

I, Dr. Elaine Furman, Ph.D., hereby declare as follows pursuant to 28 U.S.C. § 1746:

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 advertising, and unfair competition.

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 detail in this Declaration.

B. Educational Background

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 conditions of limited attention. I earned my Doctor of Philosophy degree in Marketing and Consumer Psychology from Lakewood University in 2001. My doctoral dissertation, titled "Source Confusion in Branded Consumer Products: The Interaction of Verbal Cues and Visual Trade Dress," investigated the mechanisms by which consumers form source-identification judgments in the presence of similar brand names and packaging elements. My dissertation was supervised by Professor Howard T. Kendall, a recognized authority in consumer behavior and marketing research methodology.

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, where I taught graduate-level courses in Consumer Behavior, Marketing Research Methods, and Brand Strategy, and conducted funded research on consumer perception and trademark confusion.

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. I have been retained on behalf of both plaintiffs and defendants in trademark disputes, as well as by parties in proceedings before the United States Patent and Trademark Office's Trademark Trial and Appeal Board.

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 others. A complete list of my publications is set forth in my curriculum vitae, attached hereto as Exhibit A.

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 California, the United States District Court for the District of Delaware, the United States District Court for the District of New Jersey, the United States District Court for the Eastern District of Virginia, and the United States District Court for the District of Minnesota, among others. A complete listing of my prior expert testimony over the past four years is included in my curriculum vitae.

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" and "MERIDIAN CLEAN" household cleaning products, and to provide expert testimony regarding my findings.

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 upon the outcome of the survey, the results of my analysis, the opinions I have reached, or the outcome of this litigation.

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, glass cleaners, disinfecting sprays, and floor cleaners;

(ii) U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in standard character form, registered on the Principal Register on October 18, 2016, in International Class 3 for cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners;

(iii) U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device, registered on the Principal Register on July 10, 2018, in International Class 3 for cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners;

(b) Physical product packaging samples of MCB's MERIDIAN-branded household cleaning products, including all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners;

(c) Physical product packaging samples of Brindoval Home Goods Inc.'s MERIDIAN FRESH household cleaning products, including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap;

(d) Brindoval Home Goods Inc.'s pending trademark application, Serial No. 97/412,558, for the mark MERIDIAN FRESH in International Class 3 for cleaning preparations, filed on May 12, 2022, and published for opposition on September 6, 2022;

(e) MCB's advertising and marketing materials for its MERIDIAN and MERIDIAN CLEAN product lines, including print advertisements, digital advertising creatives, social media posts, point-of-sale displays, and television commercial storyboards;

(f) Financial data provided by MCB's counsel reflecting that MCB's MERIDIAN-branded cleaning product line generated approximately $94.5 million in revenue in fiscal year 2022, and that MCB's cumulative advertising and promotional expenditures on its MERIDIAN cleaning product line from 2011 through 2022 totaled approximately $47.2 million;

(g) Publicly available information concerning Brindoval Home Goods Inc., including information about its 148 retail store locations across twelve Midwestern and Mountain West states and its e-commerce platform at www.crestviewhomegoods.com;

(h) Information regarding the launch date of Brindoval's MERIDIAN FRESH product line in approximately July 2022;

(i) Relevant portions of the Complaint and filings in this action;

(j) Academic literature and judicial precedent regarding survey methodology in trademark litigation, including the Squirt-design and modified Eveready protocols.

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, sponsorship, or affiliation of products bearing the marks at issue. See, e.g., Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir. 1986) (survey evidence is "the most direct and persuasive way of establishing likelihood of confusion"); McCarthy on Trademarks and Unfair Competition § 32:158 (5th ed.) ("Survey evidence is considered the most direct evidence on the issue of likelihood of confusion.").

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 been directed toward building brand awareness and consumer recognition of the MERIDIAN mark in connection with household cleaning products.

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.S.C. § 1072.

B. Defendant's Mark and Products

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 specific product types offered by MCB under its MERIDIAN and MERIDIAN CLEAN marks.

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 footprint of MCB's MERIDIAN-branded cleaning products.

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 features this wave device in conjunction with a teal-and-white color palette.

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 compound the potential for consumer confusion arising from the similarity of the MERIDIAN and MERIDIAN FRESH word marks.

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 employed survey formats for measuring likelihood of confusion in trademark cases.

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 specifically designed to test whether exposure to the accused product, as it appears in the marketplace, causes consumers to mistakenly associate it with the senior mark owner.

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 (2d Cir. 2005) (noting that survey evidence is important in likelihood-of-confusion analysis); McCarthy on Trademarks and Unfair Competition § 32:173 (5th ed.) (describing the Eveready/Squirt format as a "standard and accepted survey format"). The key strength of the Squirt-design is that it relies on open-ended questions that do not suggest any particular answer or direct the respondent's attention to any specific brand, thereby minimizing demand effects and measurement bias.

B. Test and Control Stimuli

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, and all product descriptors, ingredient callouts, and other labeling elements present on the actual packaging. The test stimulus was designed to replicate, as closely as possible, the visual impression a consumer would receive upon encountering the MERIDIAN FRESH product on a retail shelf or e-commerce listing.

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 constant. The fictitious mark "HORIZON FRESH" was selected because it shares no phonetic, visual, or semantic similarity with MCB's MERIDIAN marks, thereby ensuring that any confusion observed in the control group could be attributed to non-mark factors such as product-category guessing, the wave device alone, the color scheme alone, or the packaging format, rather than to the similarity between the tested mark and MCB's marks.

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 rate. This subtraction isolates the incremental confusion that is attributable specifically to the use of the "MERIDIAN FRESH" mark on Brindoval's packaging.

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 substitution of the word mark.

C. Survey Universe and Respondent Selection

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 MERIDIAN products and Brindoval's MERIDIAN FRESH products in the marketplace and to make purchasing decisions with respect to household cleaning products.

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 (such as an all-purpose cleaner, glass cleaner, disinfecting spray, disinfecting wipe, floor cleaner, or dish soap) within the past twelve months.

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 platform makes its MERIDIAN FRESH products accessible to consumers throughout the country.

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 pool of potential respondents who can be screened efficiently and assigned randomly to experimental conditions. See McCarthy on Trademarks and Unfair Competition § 32:171 (5th ed.) (noting that online surveys have become the predominant mode of administration in trademark confusion research).

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 control stimulus.

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 to the difference in the stimuli (i.e., the mark) rather than to systematic differences in the composition of the two groups.

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 10 percentage points or more at a significance level of p < 0.05, assuming a baseline confusion rate in the control group of approximately 10%. The actual results, as described below, exceeded these parameters.

D. Survey Questions

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 rates.

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/Sponsorship): "Do you think that the company that makes or puts out this product is connected with or affiliated with any other company that you know of? If so, what company?"

Question 4 (Basis Probing): "What, if anything, makes you think so?"

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/sponsorship question, designed to capture respondents who may not identify MCB as the direct source but who nevertheless believe the product is connected with or affiliated with MCB. Question 4 again probes the basis for the respondent's affiliation belief.

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 involved in the litigation.

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 complete survey instrument is attached hereto as Exhibit B.

E. Survey Administration

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 consistent with a reasonable and thorough level of engagement with the survey materials.

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 products as the source, sponsor, or affiliate of the product shown in the stimulus. This classification applied regardless of whether the respondent used the exact words "Meridian" or "Meridian Clean" or used equivalent references such as "the Meridian company," "the company that makes Meridian Clean," "the same brand as Meridian," or similar formulations.

(b) A respondent was classified as "not confused" if the respondent identified a different source (e.g., Brindoval, a store brand, a specific competitor brand, or any other entity unrelated to MCB), stated that he or she did not know who makes the product, or gave an unresponsive or irrelevant answer.

(c) Borderline or ambiguous responses — i.e., responses that could arguably be classified as either confused or not confused — were conservatively coded as "not confused." This conservative approach ensures that the reported confusion rates, if anything, understate the true level of confusion in the marketplace.

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 respondents to select a specific answer choice to confirm they were reading the questions carefully. Respondents who failed one or more attention-check questions were flagged as inattentive and were excluded from the final analytical sample. This exclusion is a standard quality-control practice in online survey research designed to ensure that the data reflects the responses of engaged and attentive participants.

(b) Duplicate Response Prevention. No respondent was permitted to take the survey more than once. Duplicate participation was prevented through multiple safeguards, including verification by IP address and unique panel identification number assigned by Quorum Research Panel Services. Respondents who attempted to access the survey a second time were automatically redirected and unable to participate again.

(c) Coding Reliability. To assess the reliability and consistency of the coding process, an independent double-coding procedure was conducted on a randomly selected 20% subsample of the verbatim responses. Two coders independently classified each response in the subsample according to the coding protocol, and their classifications were compared. The inter-coder agreement rate was 94.3%, indicating a high degree of consistency and reliability in the application of the coding criteria. Where the two coders disagreed, I personally reviewed the response and made the final classification determination.

(d) Personal Supervision. I personally supervised all aspects of the survey design, stimulus development, survey programming, pretesting, administration, data collection, response coding, quality control, and statistical analysis. At each stage of the process, I reviewed the work product to ensure that it met the standards of rigor and reliability expected of a well-conducted trademark confusion survey.

57. The quality-control measures described above are consistent with, and in several respects exceed, the standards recommended by leading authorities on survey methodology in trademark litigation. See Diamond, Reference Guide on Survey Research, in Reference Manual on Scientific Evidence 359 (Federal Judicial Center, 3d ed. 2011); McCarthy on Trademarks and Unfair Competition § 32:171 (5th ed.).

V. SURVEY RESULTS

A. Test Group Results (MERIDIAN FRESH Stimulus)

58. A total of approximately 306 qualifying respondents were assigned to the test group and were shown the MERIDIAN FRESH test stimulus. Of these respondents, 118 were classified as "confused" under the coding protocol described above — that is, they identified MCB, Meridian, Meridian Clean, or the maker of Meridian/Meridian Clean products as the source, sponsor, or affiliate of the product shown in the stimulus.

59. This yields a raw confusion rate of 38.6% in the test group (118 confused respondents out of 306 total test-group respondents).

60. The confused respondents in the test group included individuals who, in response to Question 1, directly named "Meridian" or "Meridian Clean" as the maker of the product, as well as individuals who, in response to Question 3, identified Meridian or the maker of Meridian Clean products as a company that is "connected with" or "affiliated with" the maker of the product shown. The specific responses of these individuals, and the qualitative patterns observed in their answers, are discussed further in Section V.E below and in Exhibit D.

B. Control Group Results (HORIZON FRESH Stimulus)

61. A total of approximately 306 qualifying respondents were assigned to the control group and were shown the HORIZON FRESH control stimulus. Of these respondents, 22 were classified as "confused" under the same coding protocol — that is, they identified MCB, Meridian, Meridian Clean, or the maker of Meridian/Meridian Clean products as the source, sponsor, or affiliate of the product shown in the stimulus, despite the fact that the product bore the fictitious "HORIZON FRESH" mark rather than "MERIDIAN FRESH."

62. This yields a noise rate of 7.2% in the control group (22 confused respondents out of 306 total control-group respondents).

63. The noise rate of 7.2% reflects the baseline level of confusion attributable to factors other than the "MERIDIAN" element of the accused mark. These factors may include the general similarity of the product category, the teal-and-white color scheme, the wave device, the packaging format, or random guessing. The purpose of the control group is precisely to quantify this baseline noise so that it can be subtracted from the test group's raw confusion rate, leaving only the confusion attributable to the accused mark itself.

C. Net Confusion Rate

64. The net confusion rate is calculated by subtracting the control group's noise rate from the test group's raw confusion rate:

Net Confusion Rate = 38.6% − 7.2% = 31.4%

65. A net confusion rate of 31.4% indicates that approximately one in three (31.4%) relevant consumers who were exposed to Brindoval's MERIDIAN FRESH packaging mistakenly believed the product was made by, affiliated with, or sponsored by the maker of MCB's MERIDIAN and MERIDIAN CLEAN household cleaning products — and that this confusion was specifically attributable to the presence of the "MERIDIAN" element in the accused mark, rather than to any non-mark factor.

66. This net confusion rate of 31.4% is well above the thresholds that federal courts have recognized as constituting probative evidence of likelihood of confusion. Courts in the Second Circuit and throughout the country have consistently held that net confusion rates in the range of 15% to 20% are probative of a likelihood of confusion, and that rates above approximately 25% constitute strong evidence of confusion. See, e.g., Playtex Products, Inc. v. Georgia-Pacific Corp., 390 F.3d 158, 166 (2d Cir. 2004) (noting that surveys showing confusion rates of 15% to 20% or above are generally accepted as probative); McNeil-P.P.C., Inc. v. Northpoint Holdings, 351 F. Supp. 2d 226, 248 (S.D.N.Y. 2005) (net confusion rate of 28.5% constituted "strong evidence" of likelihood of confusion); McCarthy on Trademarks and Unfair Competition § 32:188 (5th ed.) ("A survey finding more than 25% net confusion has been found to be strong evidence of likelihood of confusion."). The net confusion rate of 31.4% observed in this survey thus constitutes strong evidence that consumers are likely to be confused by Brindoval's use of the MERIDIAN FRESH mark on household cleaning products.

D. Statistical Significance

67. The difference between the test group's confusion rate (38.6%) and the control group's confusion rate (7.2%) is statistically significant at the p < 0.001 level, as determined by a chi-square test of independence. In other words, the probability that the observed difference between the two groups occurred by chance is less than one in one thousand. This finding provides a high degree of confidence that the observed difference reflects a real and meaningful effect of the MERIDIAN FRESH mark on consumer perceptions, rather than random variation or sampling error.

68. The 95% confidence interval for the net confusion rate of 31.4% is approximately 24.7% to 38.1%. This means that, with 95% confidence, the true net confusion rate in the relevant population falls within this range. Even the lower bound of this confidence interval (24.7%) exceeds the thresholds that courts have recognized as probative of a likelihood of confusion, further underscoring the robustness of the survey findings.

69. The statistical significance of the results, combined with the magnitude of the net confusion rate, confirms that the observed confusion is not attributable to chance, sampling error, or random fluctuation, but rather reflects a genuine and substantial tendency among relevant consumers to associate Brindoval's MERIDIAN FRESH products with MCB's MERIDIAN and MERIDIAN CLEAN brands.

E. Qualitative Observations

70. A review of the verbatim responses provided by confused respondents in the test group reveals consistent and illuminating patterns in the nature and basis of consumer confusion. Many confused respondents specifically mentioned "Meridian" by name and articulated a belief that the MERIDIAN FRESH product was manufactured by the same company that makes Meridian or Meridian Clean products, or was a line extension, new version, or updated formulation of existing Meridian Clean products.

71. Representative examples of confused responses in the test group include the following:

• "Meridian — it says Meridian right on the label." (Response to Question 1)

• "The company that makes Meridian Clean." (Response to Question 1)

• "It looks like a Meridian product — same wave logo." (Response to Question 2)

• "Meridian. It's a new version or something of their cleaner." (Response to Question 1)

• "I think this is connected to Meridian Clean. The name and the packaging look just like it." (Response to Question 3)

• "Same company that makes Meridian products — Meridian Fresh must be a new line." (Response to Question 1)

• "It's a Meridian brand product. The wave design and the name are the same." (Response to Question 2)

• "Yes, the company that makes Meridian cleaning products. The branding looks identical." (Response to Question 3)

72. These qualitative responses demonstrate that the confusion captured by the survey is not superficial or incidental but rather reflects a genuine and substantive misapprehension of source. Respondents perceived the MERIDIAN FRESH product as coming from the same source as MERIDIAN CLEAN, and many articulated this belief based on both the shared "MERIDIAN" name and the similar visual trade dress elements.

73. By contrast, non-confused respondents in the test group typically identified Brindoval, described the product as a store brand or private-label product, named an unrelated competitor brand, or stated that they did not know who makes the product. A compilation of representative verbatim responses from both confused and non-confused respondents in the test and control groups is attached hereto as Exhibit D.

VI. ANALYSIS AND OPINIONS

A. The Survey Results Demonstrate a High Likelihood of Consumer Confusion

74. Based on the survey results described above, it is my expert opinion that a significant proportion of consumers are likely to be confused as to the source, sponsorship, or affiliation of Brindoval's MERIDIAN FRESH household cleaning products. The net confusion rate of 31.4% establishes that approximately one in three relevant consumers — household cleaning product purchasers — will mistakenly believe that MERIDIAN FRESH products are made by, affiliated with, or sponsored by the maker of MERIDIAN and MERIDIAN CLEAN household cleaning products.

75. This confusion is primarily driven by the shared "MERIDIAN" element in the parties' marks. The dominant and most distinctive element of both MCB's marks (MERIDIAN, MERIDIAN CLEAN) and Brindoval's mark (MERIDIAN FRESH) is the word "MERIDIAN." Consumers encountering the MERIDIAN FRESH mark naturally associate it with the established MERIDIAN brand, and the addition of the descriptive modifier "FRESH" does not meaningfully distinguish the marks in consumer perception. This finding is consistent with well-established principles of trademark law, which hold that the addition of a descriptive or generic term to a distinctive mark is insufficient to avoid confusion. See, e.g., Gruner + Jahr USA Publ'g v. Meredith Corp., 991 F.2d 1072, 1078 (2d Cir. 1993) (noting that the addition of a generic term to a distinctive mark does not dispel confusion).

76. The confusion is further compounded by the overlapping trade-dress elements shared by the parties' products, including the wave device, the teal-and-white color palette, and the similar packaging formats. While the control stimulus was specifically designed to account for confusion arising from non-mark trade-dress elements (and the 7.2% noise rate has been subtracted accordingly), the qualitative responses of confused test-group respondents confirm that the visual similarity of the packaging reinforced and amplified the confusion arising from the shared "MERIDIAN" element.

77. The products at issue are identical in class (International Class 3 — cleaning preparations) and substantially overlapping in specific product types. Both parties offer all-purpose cleaners, glass cleaners, and disinfecting products. The products compete in the same retail environment — the household cleaning aisle of grocery stores and mass-merchandise retailers — and are directed at the same consumer audience. This proximity of goods significantly increases the risk that consumers will assume the products emanate from the same source.

78. Moreover, the relevant consumer base — household cleaning product purchasers — exercises a relatively low degree of purchasing care when selecting these products. Household cleaning products are low-cost, frequently purchased consumer goods that are typically selected quickly and without extensive deliberation. Under conditions of low purchasing care, consumers are more susceptible to confusion arising from similar marks and trade dress, because they are less likely to scrutinize the packaging closely before making a purchase decision. See McCarthy on Trademarks and Unfair Competition § 23:96 (5th ed.) (lower degree of consumer care increases the likelihood of confusion).

B. Consistency with Polaroid Factors

79. The survey results are consistent with and support a finding of likelihood of confusion under the multi-factor test applied in the Second Circuit. See Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961). Although the ultimate determination of likelihood of confusion under the Polaroid factors is a legal question for the Court, the survey evidence I have presented constitutes direct evidence bearing on the most critical of those factors — actual confusion — and is also relevant to several other Polaroid factors.

80. Strength of MCB's Marks. MCB's MERIDIAN marks are strong, as evidenced by continuous use in commerce since 2011, annual cleaning-line revenue of approximately $94.5 million in fiscal year 2022, cumulative advertising expenditures of $47.2 million over the life of the brand, and three federal registrations on the Principal Register. Strong marks are entitled to a broad scope of protection, and consumers are more likely to assume that products bearing a similar mark emanate from or are connected with the owner of a strong, well-established mark.

81. Similarity of Marks. The marks MERIDIAN, MERIDIAN CLEAN, and MERIDIAN FRESH share the dominant and distinctive element "MERIDIAN." The addition of the descriptive word "FRESH" to Brindoval's mark does not meaningfully distinguish it from MCB's marks in the eyes of consumers. As the survey results confirm, consumers focus on the shared "MERIDIAN" element and perceive MERIDIAN FRESH as a variant or extension of the MERIDIAN / MERIDIAN CLEAN brand.

82. Proximity of Products. The parties' products are in the identical product class (International Class 3 — cleaning preparations) and overlap in specific product types, including all-purpose cleaners, glass cleaners, and disinfecting products. They are sold in the same retail channels and compete for the same consumers.

83. Actual Confusion. The survey constitutes direct evidence on the actual-confusion factor. As the Second Circuit has recognized, "[s]urvey evidence is the most direct and persuasive way of establishing likelihood of confusion." Lois Sportswear, 799 F.2d at 875. The net confusion rate of 31.4% demonstrates a substantial level of actual confusion among relevant consumers.

C. Methodological Reliability

84. The survey methodology employed in this study is reliable, scientifically sound, and consistent with the standards accepted by federal courts and the academic community for consumer confusion surveys in trademark litigation.

85. The Squirt-design / modified Eveready format is a well-established and court-accepted survey methodology that has been endorsed by courts throughout the federal system for measuring likelihood of confusion. The format is specifically designed to minimize bias and demand effects by using open-ended questions that do not suggest any particular answer or direct the respondent's attention to the plaintiff's mark.

86. The use of a control stimulus — the HORIZON FRESH control — is a critical methodological safeguard that isolates the confusion attributable specifically to the "MERIDIAN FRESH" mark from the baseline noise arising from non-mark factors. The calculation of a net confusion rate based on the difference between the test group and control group is the accepted standard for measuring trademark confusion in survey research.

87. The sample size of 612 qualifying respondents (approximately 306 per condition) is adequate to provide reliable and statistically powerful results. The survey universe was appropriately defined to include the relevant population of household cleaning product purchasers, and respondents were properly screened and randomly assigned to conditions.

88. The use of open-ended questions throughout the core confusion portion of the survey avoids the priming and leading effects that can arise from closed-ended or multiple-choice question formats. The conservative coding protocol — under which borderline responses were classified as "not confused" — ensures that the reported confusion rate, if anything, understates the true level of confusion in the marketplace.

89. The quality-control measures implemented in the survey — including attention-check questions, duplicate-response prevention, and independent double-coding with a 94.3% inter-coder agreement rate — further ensure the integrity and reliability of the data.

VII. SUMMARY OF OPINIONS

90. Based on the foregoing analysis, and drawing upon my professional training, experience, and expertise in consumer behavior research and trademark survey methodology, I hold the following opinions to a reasonable degree of professional certainty:

Opinion 1: The consumer confusion survey I conducted in October 2022, using a sample of 612 qualifying respondents in a Squirt-design / modified Eveready protocol, demonstrates a net confusion rate of 31.4%.

Opinion 2: A significant proportion of consumers — approximately one in three — who are exposed to Brindoval's MERIDIAN FRESH household cleaning product packaging are likely to mistakenly believe that the product is made by, affiliated with, or sponsored by the maker of MERIDIAN and MERIDIAN CLEAN household cleaning products.

Opinion 3: The net confusion rate of 31.4% is well above the thresholds that federal courts, including courts in the Second Circuit, have recognized as probative of a likelihood of confusion under the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a). The observed confusion rate constitutes strong evidence that consumers are likely to be confused as to the source, sponsorship, or affiliation of Brindoval's MERIDIAN FRESH products.

Opinion 4: The confusion observed in the survey is attributable primarily to the common "MERIDIAN" element shared by MCB's marks and Brindoval's mark, reinforced by overlapping trade-dress elements, including the wave device and the teal-and-white color scheme.

Opinion 5: The survey methodology employed in this study — including the Squirt-design / modified Eveready protocol, the use of a properly constructed control stimulus, the appropriate definition of the survey universe, the use of open-ended questions, and the implementation of rigorous quality controls — is reliable, scientifically sound, and consistent with accepted practices in trademark confusion survey research as recognized by federal courts and academic authorities.

VIII. CERTIFICATION AND SIGNATURE

91. I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct to the best of my knowledge, information, and belief, and that this Declaration was executed on the date set forth below.

________________________________________

Dr. Elaine Furman, Ph.D. Principal, Lakeshore Brand Consulting LLC 333 West Wacker Drive, Suite 1100 Chicago, Illinois 60606

Date: November 18, 2022

IX. EXHIBITS

The following Exhibits are attached to and incorporated by reference into this Declaration:

Exhibit A — Curriculum Vitae of Dr. Elaine Furman, Ph.D.

The curriculum vitae sets forth Dr. Furman's educational background, professional positions held, peer-reviewed publications, presentations and invited lectures, prior expert testimony in federal and state courts and before the Trademark Trial and Appeal Board over the past four years, professional affiliations and memberships, and other relevant qualifications and experience.

Exhibit B — Survey Instrument (Questionnaire)

The survey instrument includes the full text of the screening questions, a description of the test and control stimuli as presented to respondents, the complete sequence of core confusion questions (Questions 1 through 4), the attention-check questions, and the demographic and product-usage classification questions.

Exhibit C — Tabulated Survey Results

Exhibit C contains detailed statistical tables showing the test-group and control-group response frequencies, the raw confusion rate for the test group, the noise rate for the control group, the net confusion rate, the chi-square test statistic and associated p-value, and the 95% confidence interval for the net confusion rate. Cross-tabulations by key demographic variables are also included.

Exhibit D — Representative Verbatim Responses

Exhibit D presents a compilation of selected verbatim responses from confused and non-confused respondents in both the test group and the control group, organized by question number and confusion classification. The verbatim responses illustrate the nature, specificity, and basis of consumer confusion as revealed by the survey.

Exhibit E — Coding Protocol and Reliability Analysis

Exhibit E contains the complete coding protocol used to classify respondent answers, including the specific coding categories, decision rules, definitions, and illustrative examples provided to the coders. It also includes the results of the independent double-coding reliability analysis conducted on a random 20% subsample, showing the inter-coder agreement rate and the resolution procedure for disagreements.

Respectfully submitted,

CALDERWOOD & HARKNESS LLP

By: ________

Name: Jonathan R. Blackwell

Title: Partner

Attorneys for Plaintiff Meridian Consumer Brands LLC 1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 555-7800 Facsimile: (212) 555-7801

Email: jblackwell@calderwoodharkness.com

Date: November 18, 2022

MERIDIAN CONSUMER BRANDS LLC,

Plaintiff,

Civil Action No. 1:22-cv-09483

BRINDOVAL HOME GOODS INC.,

Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
DECLARATION OF DR. ELAINE FURMAN, Ph.D., IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
I, Dr. Elaine Furman, Ph.D., hereby declare as follows pursuant to 28 U.S.C. § 1746:
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 advertising, and unfair competition.
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 detail in this Declaration.
B. Educational Background
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 conditions of limited attention. I earned my Doctor of Philosophy degree in Marketing and Consumer Psychology from Lakewood University in 2001. My doctoral dissertation, titled "Source Confusion in Branded Consumer Products: The Interaction of Verbal Cues and Visual Trade Dress," investigated the mechanisms by which consumers form source-identification judgments in the presence of similar brand names and packaging elements. My dissertation was supervised by Professor Howard T. Kendall, a recognized authority in consumer behavior and marketing research methodology.
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, where I taught graduate-level courses in Consumer Behavior, Marketing Research Methods, and Brand Strategy, and conducted funded research on consumer perception and trademark confusion.
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. I have been retained on behalf of both plaintiffs and defendants in trademark disputes, as well as by parties in proceedings before the United States Patent and Trademark Office's Trademark Trial and Appeal Board.
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 others. A complete list of my publications is set forth in my curriculum vitae, attached hereto as Exhibit A.
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 California, the United States District Court for the District of Delaware, the United States District Court for the District of New Jersey, the United States District Court for the Eastern District of Virginia, and the United States District Court for the District of Minnesota, among others. A complete listing of my prior expert testimony over the past four years is included in my curriculum vitae.
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" and "MERIDIAN CLEAN" household cleaning products, and to provide expert testimony regarding my findings.
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 upon the outcome of the survey, the results of my analysis, the opinions I have reached, or the outcome of this litigation.
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, glass cleaners, disinfecting sprays, and floor cleaners;
(ii) U.S. Registration No. 5,034,771 for the mark MERIDIAN CLEAN in standard character form, registered on the Principal Register on October 18, 2016, in International Class 3 for cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners;
(iii) U.S. Registration No. 5,589,320 for the MERIDIAN stylized logo with wave device, registered on the Principal Register on July 10, 2018, in International Class 3 for cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners;
(b) Physical product packaging samples of MCB's MERIDIAN-branded household cleaning products, including all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners;
(c) Physical product packaging samples of Brindoval Home Goods Inc.'s MERIDIAN FRESH household cleaning products, including all-purpose spray, glass cleaner, disinfecting wipes, and dish soap;
(d) Brindoval Home Goods Inc.'s pending trademark application, Serial No. 97/412,558, for the mark MERIDIAN FRESH in International Class 3 for cleaning preparations, filed on May 12, 2022, and published for opposition on September 6, 2022;
(e) MCB's advertising and marketing materials for its MERIDIAN and MERIDIAN CLEAN product lines, including print advertisements, digital advertising creatives, social media posts, point-of-sale displays, and television commercial storyboards;
(f) Financial data provided by MCB's counsel reflecting that MCB's MERIDIAN-branded cleaning product line generated approximately $94.5 million in revenue in fiscal year 2022, and that MCB's cumulative advertising and promotional expenditures on its MERIDIAN cleaning product line from 2011 through 2022 totaled approximately $47.2 million;
(g) Publicly available information concerning Brindoval Home Goods Inc., including information about its 148 retail store locations across twelve Midwestern and Mountain West states and its e-commerce platform at www.crestviewhomegoods.com;
(h) Information regarding the launch date of Brindoval's MERIDIAN FRESH product line in approximately July 2022;
(i) Relevant portions of the Complaint and filings in this action;
(j) Academic literature and judicial precedent regarding survey methodology in trademark litigation, including the Squirt-design and modified Eveready protocols.
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, sponsorship, or affiliation of products bearing the marks at issue. See, e.g., Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir. 1986) (survey evidence is "the most direct and persuasive way of establishing likelihood of confusion"); McCarthy on Trademarks and Unfair Competition § 32:158 (5th ed.) ("Survey evidence is considered the most direct evidence on the issue of likelihood of confusion.").
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 been directed toward building brand awareness and consumer recognition of the MERIDIAN mark in connection with household cleaning products.
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.S.C. § 1072.
B. Defendant's Mark and Products
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 specific product types offered by MCB under its MERIDIAN and MERIDIAN CLEAN marks.
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 footprint of MCB's MERIDIAN-branded cleaning products.
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 features this wave device in conjunction with a teal-and-white color palette.
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 compound the potential for consumer confusion arising from the similarity of the MERIDIAN and MERIDIAN FRESH word marks.
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 employed survey formats for measuring likelihood of confusion in trademark cases.
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 specifically designed to test whether exposure to the accused product, as it appears in the marketplace, causes consumers to mistakenly associate it with the senior mark owner.
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 (2d Cir. 2005) (noting that survey evidence is important in likelihood-of-confusion analysis); McCarthy on Trademarks and Unfair Competition § 32:173 (5th ed.) (describing the Eveready/Squirt format as a "standard and accepted survey format"). The key strength of the Squirt-design is that it relies on open-ended questions that do not suggest any particular answer or direct the respondent's attention to any specific brand, thereby minimizing demand effects and measurement bias.
B. Test and Control Stimuli
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, and all product descriptors, ingredient callouts, and other labeling elements present on the actual packaging. The test stimulus was designed to replicate, as closely as possible, the visual impression a consumer would receive upon encountering the MERIDIAN FRESH product on a retail shelf or e-commerce listing.
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 constant. The fictitious mark "HORIZON FRESH" was selected because it shares no phonetic, visual, or semantic similarity with MCB's MERIDIAN marks, thereby ensuring that any confusion observed in the control group could be attributed to non-mark factors such as product-category guessing, the wave device alone, the color scheme alone, or the packaging format, rather than to the similarity between the tested mark and MCB's marks.
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 rate. This subtraction isolates the incremental confusion that is attributable specifically to the use of the "MERIDIAN FRESH" mark on Brindoval's packaging.
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 substitution of the word mark.
C. Survey Universe and Respondent Selection
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 MERIDIAN products and Brindoval's MERIDIAN FRESH products in the marketplace and to make purchasing decisions with respect to household cleaning products.
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 (such as an all-purpose cleaner, glass cleaner, disinfecting spray, disinfecting wipe, floor cleaner, or dish soap) within the past twelve months.
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 platform makes its MERIDIAN FRESH products accessible to consumers throughout the country.
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 pool of potential respondents who can be screened efficiently and assigned randomly to experimental conditions. See McCarthy on Trademarks and Unfair Competition § 32:171 (5th ed.) (noting that online surveys have become the predominant mode of administration in trademark confusion research).
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 control stimulus.
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 to the difference in the stimuli (i.e., the mark) rather than to systematic differences in the composition of the two groups.
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 10 percentage points or more at a significance level of p < 0.05, assuming a baseline confusion rate in the control group of approximately 10%. The actual results, as described below, exceeded these parameters.
D. Survey Questions
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 rates.
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/Sponsorship): "Do you think that the company that makes or puts out this product is connected with or affiliated with any other company that you know of? If so, what company?"
Question 4 (Basis Probing): "What, if anything, makes you think so?"
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/sponsorship question, designed to capture respondents who may not identify MCB as the direct source but who nevertheless believe the product is connected with or affiliated with MCB. Question 4 again probes the basis for the respondent's affiliation belief.
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 involved in the litigation.
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 complete survey instrument is attached hereto as Exhibit B.
E. Survey Administration
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 consistent with a reasonable and thorough level of engagement with the survey materials.
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 products as the source, sponsor, or affiliate of the product shown in the stimulus. This classification applied regardless of whether the respondent used the exact words "Meridian" or "Meridian Clean" or used equivalent references such as "the Meridian company," "the company that makes Meridian Clean," "the same brand as Meridian," or similar formulations.
(b) A respondent was classified as "not confused" if the respondent identified a different source (e.g., Brindoval, a store brand, a specific competitor brand, or any other entity unrelated to MCB), stated that he or she did not know who makes the product, or gave an unresponsive or irrelevant answer.
(c) Borderline or ambiguous responses — i.e., responses that could arguably be classified as either confused or not confused — were conservatively coded as "not confused." This conservative approach ensures that the reported confusion rates, if anything, understate the true level of confusion in the marketplace.
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 respondents to select a specific answer choice to confirm they were reading the questions carefully. Respondents who failed one or more attention-check questions were flagged as inattentive and were excluded from the final analytical sample. This exclusion is a standard quality-control practice in online survey research designed to ensure that the data reflects the responses of engaged and attentive participants.
(b) Duplicate Response Prevention. No respondent was permitted to take the survey more than once. Duplicate participation was prevented through multiple safeguards, including verification by IP address and unique panel identification number assigned by Quorum Research Panel Services. Respondents who attempted to access the survey a second time were automatically redirected and unable to participate again.
(c) Coding Reliability. To assess the reliability and consistency of the coding process, an independent double-coding procedure was conducted on a randomly selected 20% subsample of the verbatim responses. Two coders independently classified each response in the subsample according to the coding protocol, and their classifications were compared. The inter-coder agreement rate was 94.3%, indicating a high degree of consistency and reliability in the application of the coding criteria. Where the two coders disagreed, I personally reviewed the response and made the final classification determination.
(d) Personal Supervision. I personally supervised all aspects of the survey design, stimulus development, survey programming, pretesting, administration, data collection, response coding, quality control, and statistical analysis. At each stage of the process, I reviewed the work product to ensure that it met the standards of rigor and reliability expected of a well-conducted trademark confusion survey.
57.  The quality-control measures described above are consistent with, and in several respects exceed, the standards recommended by leading authorities on survey methodology in trademark litigation. See Diamond, Reference Guide on Survey Research, in Reference Manual on Scientific Evidence 359 (Federal Judicial Center, 3d ed. 2011); McCarthy on Trademarks and Unfair Competition § 32:171 (5th ed.).
V. SURVEY RESULTS
A. Test Group Results (MERIDIAN FRESH Stimulus)
58.  A total of approximately 306 qualifying respondents were assigned to the test group and were shown the MERIDIAN FRESH test stimulus. Of these respondents, 118 were classified as "confused" under the coding protocol described above — that is, they identified MCB, Meridian, Meridian Clean, or the maker of Meridian/Meridian Clean products as the source, sponsor, or affiliate of the product shown in the stimulus.
59.  This yields a raw confusion rate of 38.6% in the test group (118 confused respondents out of 306 total test-group respondents).
60.  The confused respondents in the test group included individuals who, in response to Question 1, directly named "Meridian" or "Meridian Clean" as the maker of the product, as well as individuals who, in response to Question 3, identified Meridian or the maker of Meridian Clean products as a company that is "connected with" or "affiliated with" the maker of the product shown. The specific responses of these individuals, and the qualitative patterns observed in their answers, are discussed further in Section V.E below and in Exhibit D.
B. Control Group Results (HORIZON FRESH Stimulus)
61.  A total of approximately 306 qualifying respondents were assigned to the control group and were shown the HORIZON FRESH control stimulus. Of these respondents, 22 were classified as "confused" under the same coding protocol — that is, they identified MCB, Meridian, Meridian Clean, or the maker of Meridian/Meridian Clean products as the source, sponsor, or affiliate of the product shown in the stimulus, despite the fact that the product bore the fictitious "HORIZON FRESH" mark rather than "MERIDIAN FRESH."
62.  This yields a noise rate of 7.2% in the control group (22 confused respondents out of 306 total control-group respondents).
63.  The noise rate of 7.2% reflects the baseline level of confusion attributable to factors other than the "MERIDIAN" element of the accused mark. These factors may include the general similarity of the product category, the teal-and-white color scheme, the wave device, the packaging format, or random guessing. The purpose of the control group is precisely to quantify this baseline noise so that it can be subtracted from the test group's raw confusion rate, leaving only the confusion attributable to the accused mark itself.
C. Net Confusion Rate
64.  The net confusion rate is calculated by subtracting the control group's noise rate from the test group's raw confusion rate:
Net Confusion Rate = 38.6% − 7.2% = 31.4%
65.  A net confusion rate of 31.4% indicates that approximately one in three (31.4%) relevant consumers who were exposed to Brindoval's MERIDIAN FRESH packaging mistakenly believed the product was made by, affiliated with, or sponsored by the maker of MCB's MERIDIAN and MERIDIAN CLEAN household cleaning products — and that this confusion was specifically attributable to the presence of the "MERIDIAN" element in the accused mark, rather than to any non-mark factor.
66.  This net confusion rate of 31.4% is well above the thresholds that federal courts have recognized as constituting probative evidence of likelihood of confusion. Courts in the Second Circuit and throughout the country have consistently held that net confusion rates in the range of 15% to 20% are probative of a likelihood of confusion, and that rates above approximately 25% constitute strong evidence of confusion. See, e.g., Playtex Products, Inc. v. Georgia-Pacific Corp., 390 F.3d 158, 166 (2d Cir. 2004) (noting that surveys showing confusion rates of 15% to 20% or above are generally accepted as probative); McNeil-P.P.C., Inc. v. Northpoint Holdings, 351 F. Supp. 2d 226, 248 (S.D.N.Y. 2005) (net confusion rate of 28.5% constituted "strong evidence" of likelihood of confusion); McCarthy on Trademarks and Unfair Competition § 32:188 (5th ed.) ("A survey finding more than 25% net confusion has been found to be strong evidence of likelihood of confusion."). The net confusion rate of 31.4% observed in this survey thus constitutes strong evidence that consumers are likely to be confused by Brindoval's use of the MERIDIAN FRESH mark on household cleaning products.
D. Statistical Significance
67.  The difference between the test group's confusion rate (38.6%) and the control group's confusion rate (7.2%) is statistically significant at the p < 0.001 level, as determined by a chi-square test of independence. In other words, the probability that the observed difference between the two groups occurred by chance is less than one in one thousand. This finding provides a high degree of confidence that the observed difference reflects a real and meaningful effect of the MERIDIAN FRESH mark on consumer perceptions, rather than random variation or sampling error.
68.  The 95% confidence interval for the net confusion rate of 31.4% is approximately 24.7% to 38.1%. This means that, with 95% confidence, the true net confusion rate in the relevant population falls within this range. Even the lower bound of this confidence interval (24.7%) exceeds the thresholds that courts have recognized as probative of a likelihood of confusion, further underscoring the robustness of the survey findings.
69.  The statistical significance of the results, combined with the magnitude of the net confusion rate, confirms that the observed confusion is not attributable to chance, sampling error, or random fluctuation, but rather reflects a genuine and substantial tendency among relevant consumers to associate Brindoval's MERIDIAN FRESH products with MCB's MERIDIAN and MERIDIAN CLEAN brands.
E. Qualitative Observations
70.  A review of the verbatim responses provided by confused respondents in the test group reveals consistent and illuminating patterns in the nature and basis of consumer confusion. Many confused respondents specifically mentioned "Meridian" by name and articulated a belief that the MERIDIAN FRESH product was manufactured by the same company that makes Meridian or Meridian Clean products, or was a line extension, new version, or updated formulation of existing Meridian Clean products.
71.  Representative examples of confused responses in the test group include the following:
•  "Meridian — it says Meridian right on the label." (Response to Question 1)
•  "The company that makes Meridian Clean." (Response to Question 1)
•  "It looks like a Meridian product — same wave logo." (Response to Question 2)
•  "Meridian. It's a new version or something of their cleaner." (Response to Question 1)
•  "I think this is connected to Meridian Clean. The name and the packaging look just like it." (Response to Question 3)
•  "Same company that makes Meridian products — Meridian Fresh must be a new line." (Response to Question 1)
•  "It's a Meridian brand product. The wave design and the name are the same." (Response to Question 2)
•  "Yes, the company that makes Meridian cleaning products. The branding looks identical." (Response to Question 3)
72.  These qualitative responses demonstrate that the confusion captured by the survey is not superficial or incidental but rather reflects a genuine and substantive misapprehension of source. Respondents perceived the MERIDIAN FRESH product as coming from the same source as MERIDIAN CLEAN, and many articulated this belief based on both the shared "MERIDIAN" name and the similar visual trade dress elements.
73.  By contrast, non-confused respondents in the test group typically identified Brindoval, described the product as a store brand or private-label product, named an unrelated competitor brand, or stated that they did not know who makes the product. A compilation of representative verbatim responses from both confused and non-confused respondents in the test and control groups is attached hereto as Exhibit D.
VI. ANALYSIS AND OPINIONS
A. The Survey Results Demonstrate a High Likelihood of Consumer Confusion
74.  Based on the survey results described above, it is my expert opinion that a significant proportion of consumers are likely to be confused as to the source, sponsorship, or affiliation of Brindoval's MERIDIAN FRESH household cleaning products. The net confusion rate of 31.4% establishes that approximately one in three relevant consumers — household cleaning product purchasers — will mistakenly believe that MERIDIAN FRESH products are made by, affiliated with, or sponsored by the maker of MERIDIAN and MERIDIAN CLEAN household cleaning products.
75.  This confusion is primarily driven by the shared "MERIDIAN" element in the parties' marks. The dominant and most distinctive element of both MCB's marks (MERIDIAN, MERIDIAN CLEAN) and Brindoval's mark (MERIDIAN FRESH) is the word "MERIDIAN." Consumers encountering the MERIDIAN FRESH mark naturally associate it with the established MERIDIAN brand, and the addition of the descriptive modifier "FRESH" does not meaningfully distinguish the marks in consumer perception. This finding is consistent with well-established principles of trademark law, which hold that the addition of a descriptive or generic term to a distinctive mark is insufficient to avoid confusion. See, e.g., Gruner + Jahr USA Publ'g v. Meredith Corp., 991 F.2d 1072, 1078 (2d Cir. 1993) (noting that the addition of a generic term to a distinctive mark does not dispel confusion).
76.  The confusion is further compounded by the overlapping trade-dress elements shared by the parties' products, including the wave device, the teal-and-white color palette, and the similar packaging formats. While the control stimulus was specifically designed to account for confusion arising from non-mark trade-dress elements (and the 7.2% noise rate has been subtracted accordingly), the qualitative responses of confused test-group respondents confirm that the visual similarity of the packaging reinforced and amplified the confusion arising from the shared "MERIDIAN" element.
77.  The products at issue are identical in class (International Class 3 — cleaning preparations) and substantially overlapping in specific product types. Both parties offer all-purpose cleaners, glass cleaners, and disinfecting products. The products compete in the same retail environment — the household cleaning aisle of grocery stores and mass-merchandise retailers — and are directed at the same consumer audience. This proximity of goods significantly increases the risk that consumers will assume the products emanate from the same source.
78.  Moreover, the relevant consumer base — household cleaning product purchasers — exercises a relatively low degree of purchasing care when selecting these products. Household cleaning products are low-cost, frequently purchased consumer goods that are typically selected quickly and without extensive deliberation. Under conditions of low purchasing care, consumers are more susceptible to confusion arising from similar marks and trade dress, because they are less likely to scrutinize the packaging closely before making a purchase decision. See McCarthy on Trademarks and Unfair Competition § 23:96 (5th ed.) (lower degree of consumer care increases the likelihood of confusion).
B. Consistency with Polaroid Factors
79.  The survey results are consistent with and support a finding of likelihood of confusion under the multi-factor test applied in the Second Circuit. See Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961). Although the ultimate determination of likelihood of confusion under the Polaroid factors is a legal question for the Court, the survey evidence I have presented constitutes direct evidence bearing on the most critical of those factors — actual confusion — and is also relevant to several other Polaroid factors.
80.  Strength of MCB's Marks. MCB's MERIDIAN marks are strong, as evidenced by continuous use in commerce since 2011, annual cleaning-line revenue of approximately $94.5 million in fiscal year 2022, cumulative advertising expenditures of $47.2 million over the life of the brand, and three federal registrations on the Principal Register. Strong marks are entitled to a broad scope of protection, and consumers are more likely to assume that products bearing a similar mark emanate from or are connected with the owner of a strong, well-established mark.
81.  Similarity of Marks. The marks MERIDIAN, MERIDIAN CLEAN, and MERIDIAN FRESH share the dominant and distinctive element "MERIDIAN." The addition of the descriptive word "FRESH" to Brindoval's mark does not meaningfully distinguish it from MCB's marks in the eyes of consumers. As the survey results confirm, consumers focus on the shared "MERIDIAN" element and perceive MERIDIAN FRESH as a variant or extension of the MERIDIAN / MERIDIAN CLEAN brand.
82.  Proximity of Products. The parties' products are in the identical product class (International Class 3 — cleaning preparations) and overlap in specific product types, including all-purpose cleaners, glass cleaners, and disinfecting products. They are sold in the same retail channels and compete for the same consumers.
83.  Actual Confusion. The survey constitutes direct evidence on the actual-confusion factor. As the Second Circuit has recognized, "[s]urvey evidence is the most direct and persuasive way of establishing likelihood of confusion." Lois Sportswear, 799 F.2d at 875. The net confusion rate of 31.4% demonstrates a substantial level of actual confusion among relevant consumers.
C. Methodological Reliability
84.  The survey methodology employed in this study is reliable, scientifically sound, and consistent with the standards accepted by federal courts and the academic community for consumer confusion surveys in trademark litigation.
85.  The Squirt-design / modified Eveready format is a well-established and court-accepted survey methodology that has been endorsed by courts throughout the federal system for measuring likelihood of confusion. The format is specifically designed to minimize bias and demand effects by using open-ended questions that do not suggest any particular answer or direct the respondent's attention to the plaintiff's mark.
86.  The use of a control stimulus — the HORIZON FRESH control — is a critical methodological safeguard that isolates the confusion attributable specifically to the "MERIDIAN FRESH" mark from the baseline noise arising from non-mark factors. The calculation of a net confusion rate based on the difference between the test group and control group is the accepted standard for measuring trademark confusion in survey research.
87.  The sample size of 612 qualifying respondents (approximately 306 per condition) is adequate to provide reliable and statistically powerful results. The survey universe was appropriately defined to include the relevant population of household cleaning product purchasers, and respondents were properly screened and randomly assigned to conditions.
88.  The use of open-ended questions throughout the core confusion portion of the survey avoids the priming and leading effects that can arise from closed-ended or multiple-choice question formats. The conservative coding protocol — under which borderline responses were classified as "not confused" — ensures that the reported confusion rate, if anything, understates the true level of confusion in the marketplace.
89.  The quality-control measures implemented in the survey — including attention-check questions, duplicate-response prevention, and independent double-coding with a 94.3% inter-coder agreement rate — further ensure the integrity and reliability of the data.
VII. SUMMARY OF OPINIONS
90.  Based on the foregoing analysis, and drawing upon my professional training, experience, and expertise in consumer behavior research and trademark survey methodology, I hold the following opinions to a reasonable degree of professional certainty:
Opinion 1: The consumer confusion survey I conducted in October 2022, using a sample of 612 qualifying respondents in a Squirt-design / modified Eveready protocol, demonstrates a net confusion rate of 31.4%.
Opinion 2: A significant proportion of consumers — approximately one in three — who are exposed to Brindoval's MERIDIAN FRESH household cleaning product packaging are likely to mistakenly believe that the product is made by, affiliated with, or sponsored by the maker of MERIDIAN and MERIDIAN CLEAN household cleaning products.
Opinion 3: The net confusion rate of 31.4% is well above the thresholds that federal courts, including courts in the Second Circuit, have recognized as probative of a likelihood of confusion under the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a). The observed confusion rate constitutes strong evidence that consumers are likely to be confused as to the source, sponsorship, or affiliation of Brindoval's MERIDIAN FRESH products.
Opinion 4: The confusion observed in the survey is attributable primarily to the common "MERIDIAN" element shared by MCB's marks and Brindoval's mark, reinforced by overlapping trade-dress elements, including the wave device and the teal-and-white color scheme.
Opinion 5: The survey methodology employed in this study — including the Squirt-design / modified Eveready protocol, the use of a properly constructed control stimulus, the appropriate definition of the survey universe, the use of open-ended questions, and the implementation of rigorous quality controls — is reliable, scientifically sound, and consistent with accepted practices in trademark confusion survey research as recognized by federal courts and academic authorities.
VIII. CERTIFICATION AND SIGNATURE
91.  I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct to the best of my knowledge, information, and belief, and that this Declaration was executed on the date set forth below.
________________________________________
Dr. Elaine Furman, Ph.D. Principal, Lakeshore Brand Consulting LLC 333 West Wacker Drive, Suite 1100 Chicago, Illinois 60606
Date: November 18, 2022
IX. EXHIBITS
The following Exhibits are attached to and incorporated by reference into this Declaration:
Exhibit A — Curriculum Vitae of Dr. Elaine Furman, Ph.D.
The curriculum vitae sets forth Dr. Furman's educational background, professional positions held, peer-reviewed publications, presentations and invited lectures, prior expert testimony in federal and state courts and before the Trademark Trial and Appeal Board over the past four years, professional affiliations and memberships, and other relevant qualifications and experience.
Exhibit B — Survey Instrument (Questionnaire)
The survey instrument includes the full text of the screening questions, a description of the test and control stimuli as presented to respondents, the complete sequence of core confusion questions (Questions 1 through 4), the attention-check questions, and the demographic and product-usage classification questions.
Exhibit C — Tabulated Survey Results
Exhibit C contains detailed statistical tables showing the test-group and control-group response frequencies, the raw confusion rate for the test group, the noise rate for the control group, the net confusion rate, the chi-square test statistic and associated p-value, and the 95% confidence interval for the net confusion rate. Cross-tabulations by key demographic variables are also included.
Exhibit D — Representative Verbatim Responses
Exhibit D presents a compilation of selected verbatim responses from confused and non-confused respondents in both the test group and the control group, organized by question number and confusion classification. The verbatim responses illustrate the nature, specificity, and basis of consumer confusion as revealed by the survey.
Exhibit E — Coding Protocol and Reliability Analysis
Exhibit E contains the complete coding protocol used to classify respondent answers, including the specific coding categories, decision rules, definitions, and illustrative examples provided to the coders. It also includes the results of the independent double-coding reliability analysis conducted on a random 20% subsample, showing the inter-coder agreement rate and the resolution procedure for disagreements.
Respectfully submitted,
CALDERWOOD & HARKNESS LLP
By: ________
Name: Jonathan R. Blackwell
Title: Partner
Attorneys for Plaintiff Meridian Consumer Brands LLC 1251 Avenue of the Americas, 40th Floor New York, New York 10020 Telephone: (212) 555-7800 Facsimile: (212) 555-7801
Email: jblackwell@calderwoodharkness.com
Date: November 18, 2022
MERIDIAN CONSUMER BRANDS LLC,
<!-- indent:2 -->Plaintiff,<!-- /indent -->
Civil Action No. 1:22-cv-09483
v. | (Hon. Patricia M. Albright)
BRINDOVAL HOME GOODS INC.,
<!-- indent:2 -->Defendant.<!-- /indent -->