during the previous year about staying in hotels or motels, 21.4 percent of those responding identified McDonald’s as the owner or operator of the McSleep inn.
Finally, with respect to the picture of an Egg McMuffin, 87 percent of those shown the picture identified it as a product of McDonald’s.
Dr. Jacoby concluded that these figures reflected “a low level of likelihood of confusion.” He went on to point out that one would predict that as McSleep Inns were advertised and became more widely known to the public “even the current low level of likely confusion would be substantially reduced.”
McDonald’s offered two surveys conducted by Dr. Hans Zeisel, a professor at the University of Chicago. His first survey was a telephone survey conducted of a statistical sample of the population consisting of 400 persons randomly selected. The first two questions asked of the respondents were:
If you were driving along the highway and you saw a sign for a hotel called McSleep Inn [the name is spelled out], what would you expect this hotel to be like?
and
And who or what company do you believe owns or operates this hotel called McSleep Inn?
Dr. Zeisel testified that the first question was a warmup that introduces the respondent to the subject of the inquiry, i.e. McSleep Inn, and that the second question was the critical one. In response to the second question, 31 percent of the people surveyed answered, “McDonald’s.” If only the respondents who stayed in a hotel at least once during the past 12 months are included, 33 percent answered “McDonald’s;” and if only respondents who stayed in hotels at least 12 times during the past year are counted, 39 percent responded “McDonald’s.” He concluded that naming a hotel “McSleep Inn” would likely cause confusion among “a substantial proportion of the population by leading them to believe that this hotel is somehow related to McDonald’s.”
Dr. Jacoby, Quality International’s expert, criticized the survey by Dr. Zeisel, arguing that the warmup question was merely a free association question which was leading and prompted the answer to the second question. It was also contended that the survey only tested auditory response to McSleep Inn and provided no visual stimulus, which was unlike the real world. He urged that a “mall intercept” survey would be superior.
Although Dr. Zeisel was not in favor of mall intercept surveys because such surveys cannot as a practical matter be performed on a valid statistical sample, in response to the criticism of Dr. Jacoby he conducted a second survey using a visual stimulus. In the second survey, Dr. Zeisel also eliminated the first question of his first survey to prove, as he testified, that the first question did not materially alter the results.
The mall intercept survey conducted by Dr. Zeisel interviewed 401 persons at randomly selected shopping malls across the country. After two unrelated warmup questions, the respondent was asked the following question:
Please take a look at this. Here is a photograph of a sign for a hotel you might see if you were driving along the highway. [The witness was then shown the McSleep Inn logo that is the subject of registration before the Patent and Trademark Office.] Who or what company do you believe owns or operates this hotel?
Over 31 percent (31.9%) of all the respondents expressed the belief that McDonald’s owns or operates the hotel. If only respondents who stayed in a hotel at least once during the last 12 months are included, 34.5 percent believed that McDonald’s owns or operates McSleep Inn; and if only respondents who stayed in hotels 12 or more times during the past year are included, 38.5 percent believed that McDonald’s owns or operates McSleep Inn.
The results obtained by Dr. Zeisel in his two surveys are not materially different,
