Certain Electric Power Tools, Battery Cartridges, and ... - USITC

attributable only to the claimed mark in design/color combination.Evenhere, as is noted below, the percentages are non-persuasive of secondarymeaning, especially when the various inflating factors are considered.However, when we try to break out identification by color alone, ordesign alone, we can clearly see that the study was not adequately designedto determine the significance of the three separate claimed marks.If weconsider the twelve studies combined for those categories which utilize thecolor "Makita blue," only 24.01% of the total respondents made a Makitasole source identification faE dny -. (FF 322). Of these, 24.13%answered only "color,"or "its blue" in response to the question as towhat caused them to identify Makita.This is only a 5.8% identificationrate based solely on color. (FF 322). To the extent complainants haveattempted to prove secondary meaning of the color alone, identificationsbased on non-color factors, or color combined with design features, arespurious to the results reported in Table 10.My examination of the questionnaires leads me to conclude that a similarresult would be obtained, if we tabulated those who identified one of these12 Makita tools on the basis of design alone. (Judges Ex. 2). 261The reported results of complainants' surveys are inflated due to thefact that the survey universe is narrower than the relevant consumer group,excluding A variety of relevant consumers who are less familiar withWita, as described above.The results are also skewed due to the biasbuilt into the selection of the geographic coverage.The study also fails261 The two tools which did not bear the color Thkita blue" were the twolowest tools in sole source recognition in Table 10 for all tools. (FF312). They were the 14" cut-off saw (1.5%) and the battery cartridge (11%).227