Hellmans v Just Mayo - Declaration of Michael Mazis

Hellmans v Just Mayo - Declaration of Michael Mazis
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  Bruce P. Keller ( H. Bernstein (*Michael Potenza ( I. Kagan (*DEBEVOISE & PLIMPTON LLP919 Third Avenue New York, New York 10022(212) 909-6000Attorneys for Conopco, Inc. *admitted pro hac vice UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY----------------------------------------------------------------------- xCONOPCO, INC., doing business as UNILEVER,Plaintiff,-against-HAMPTON CREEK, INC.,Defendant.:::::::::14 Civ. 06856 (WHW)(CLW) DECLARATION OFMICHAEL MAZIS ----------------------------------------------------------------------- xI, Michael Mazis, declare as follows:1. I submit this declaration on personal knowledge in support of Unilever’sapplication for a preliminary injunction against Hampton Creek, Inc. (“Hampton Creek”).2. I am Professor Emeritus of Marketing at American University’s KogodSchool of Business and have conducted marketing research surveys for over 30 years. Iwas a faculty member at American University for 28 years, and I served over 10 years aschair of the marketing department. I have taught courses in consumer behavior, Case 2:14-cv-06856-WHW-CLW Document 10-1 Filed 11/07/14 Page 1 of 14 PageID: 69  2marketing research, marketing principles, marketing management, and marketing and public policy. I have testified in Federal Court many times as an expert on consumer  perception of advertising and product labels, including on behalf of the Federal TradeCommission. Additional information about my professional background is provided below at ¶¶ 29-30, and in my resume, which is attached as Exhibit A hereto. A list of thecases in which I have testified in the last four years is attached as Exhibit B hereto. NATURE OF RETENTION AND SUMMARY OF CONCLUSIONS 3. I was engaged by counsel for Unilever, the manufacturer of Hellmann’s®and Best Foods® mayonnaise, to conduct a survey among purchasers of mayonnaise,mayonnaise dressing, or imitation mayonnaise. The purpose of the research was todetermine consumers’ perceptions of   Just Mayo , a product distributed by Hampton Creek Foods, Inc. As I understand it, because  Just Mayo  is egg-free, it cannot be called“mayonnaise” under the Food and Drug Administration’s standard of identity for mayonnaise, which specifies that egg yolks are a necessary ingredient of mayonnaise.Accordingly, I was asked to investigate whether consumers perceive  Just Mayo  as realmayonnaise, as a spread or dressing that resembles mayonnaise but is not realmayonnaise, or as something else.4. To determine whether consumers mistakenly believe that  Just Mayo  ismayonnaise, I designed and conducted a survey. The findings of the survey, describedherein, demonstrate that an overwhelming majority (53.7%) of the respondents who sawthe  Just Mayo  label and product mistakenly perceive the product to be real mayonnaise. Case 2:14-cv-06856-WHW-CLW Document 10-1 Filed 11/07/14 Page 2 of 14 PageID: 70  3Adding the word “Dressing” to the  Just Mayo  label (“Just Mayo Dressing”) onlymarginally diminishes, but does not eliminate, the propensity of consumers to identify  Just Mayo  as real mayonnaise (41.5%). Therefore, to determine how much of theconfusion was attributable to the use of the word “mayo” and/or by the use of the word“just” which fails to explain that the product is not real mayonnaise, I tested twoadditional labels. One label used the name “Just Delicious Dressing” instead of   Just  Mayo  (replacing the alleged false use of the term “Mayo”), but was otherwise identical tothe  Just Mayo  label. The other label prominently changed the name from  Just Mayo  to NOT QUITE MAYO (replacing the alleged false use of the term “Just”).5. Only 5.8% of the consumers who saw the NOT QUITE MAYO labelmistakenly believed that it was real mayonnaise. Subtracting the 5.8% from this groupwho said the product was “real mayonnaise” from the 53.7% in the group who viewed the  Just Mayo  label and selected this answer, yields 47.9% who identified  Just Mayo  as “realmayonnaise.” 1 6. Only 10.2% of the consumers who saw the Just Delicious Dressing labelmistakenly believed that it was “real mayonnaise.” Subtracting the 10.2% from thisgroup who said the product was “real mayonnaise” from the 53.7% in the group whoviewed the  Just Mayo  label and selected this answer, yields 43.5% who identified  Just  Mayo  as “real mayonnaise.” 1 It is well accepted in the survey field that the gross level of confusion in a test cellshould be adjusted to reflect mis-measurement error, or noise, much like a pharmaceutical trial accounts for noise through a placebo test. Case 2:14-cv-06856-WHW-CLW Document 10-1 Filed 11/07/14 Page 3 of 14 PageID: 71  47. The difference of 43.5% to 47.9% between confusion in the group thatwas shown the  Just Mayo  label and the groups that were shown the Just DeliciousDressing label ( i.e. , no “mayo”) and the Not Quite Mayo label ( i.e. , no “just”)demonstrates that a very substantial percentage of consumers (more than 40 percent) areconfused by the name  Just Mayo . CONSUMER SURVEYData Collection and Universe 8. I designed an online survey to determine whether consumers who purchase mayonnaise, mayonnaise dressing, or imitation mayonnaise believe that  Just  Mayo  is real mayonnaise or some other type of spread or dressing. Decision Analyst, anational marketing research firm based in Arlington, Texas was responsible for providingthe sample, hosting the survey, and collecting data for the research. In addition, under my direction, Decision Analyst tabulated the data.9. Data for the survey were collected from August 13, 2014 to August 20,2014. Decision Analyst used its American Consumer Opinion® (ACO) panel tocomplete the study. The ACO ® panel is a worldwide, online panel managed byDecision Analyst; it reaches more than eight million consumers in the United States andoverseas.10. A total of 822 consumers participated in the research; all were adults 18years of age or older and residents of the United States. In addition, all respondents had Case 2:14-cv-06856-WHW-CLW Document 10-1 Filed 11/07/14 Page 4 of 14 PageID: 72
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