Question: Brooks Shoes Brings Flawed Study to Court SOURCE: Gastwirth (1988) pp. 517-520. In 1981, Brooks Shoe Manufacturing Company sued Suave Shoe Corporation for manufacturing shoes incorporating a "V" design used in Brooks's athletic shoes. Brooks claimed that the design was an unregistered trademark that people used to identify Brooks shoes. According to Gastwirth (1988, p. 517), it was the role of the court to determine "the distinctiveness or strength of the mark as well as its possible secondary meaning (similarity of product or mark might confuse prospective purchasers of the source of the item)." To show that the design had "secondary meaning" to buyers, Brooks conducted a survey of 121 spectators and participants at three track meets. Interviewers approached people and asked them a series of questions that included showing them a Brooks shoe with the name masked and asking them to identify it. Of those surveyed, 71% were able to identify it as a Brooks shoe, and 33% of those people said it was because they recognized the "V." When shown a Suave shoe, 39% of them thought it was a Brooks shoe, with 48% of those people saying it was because of the "V" design on the Suave shoe. Brooks Company argued that this was sufficient evidence that people might be confused and think Suave shoes were manufactured by Brooks. Suave had a statistician as an expert witness who pointed out a number of flaws in the Brooks survey. Let's examine them using the Seven Critical Components as a guide. First, the survey was funded and conducted by Brooks, and the company's lawyer was instrumental in designing it. Second, the court determined that the interviewers who had contact with the respondents were inadequately trained in how to conduct an unbiased survey.

Third, the individuals asked were not selected to be representative of the general public in the area (Baltimore/Washington, D.C.). For example, 78% had some college education, compared with 18.4% in Baltimore and 37.7% in Washington, D.C. Further, the settings for the interviews were track meets, where people were likely to be more familiar with athletic shoes. The questions asked were biased. For example, the exact wording used when a person was handed the shoes was: "I am going to hand you a shoe. Please tell me what brand you think it is." The way the question is framed would presumably lead respondents to think the shoe has a well-known brand name. Later in the questioning, respondents were asked, "How long have you known about Brooks Running Shoes?" Because of the setting, respondents could have informed others at the track meet that Brooks was probably conducting the survey, and those informed could have subsequently been interviewed. Suave introduced its own survey conducted on 404 respondents properly sampled from the population of all people who had purchased any type of athletic shoe during the previous year. Of those, only 2.7% recognized a Brooks shoe on the basis of the "V" design. The combination of the poor survey methods by Brooks and the proper survey by Suave convinced the court that the public did not make enough of an association between Brooks and the "V" design to allow Brooks to claim legal rights to the design.