SUMMARY OF OPINION
I have been engaged
by the law firm of Jones, Day, Reavis & Pogue, counsel for
plaintiffs, and asked to conduct independent consumer research
to ascertain the reactions of a national sample of adults to the
name "Charbucks" and to determine whether the
respondents associate the name with "Starbucks" and
how this association would affect the "Starbucks"
brand name. Having completed this task, my opinions can be
summarized as follows;
• The number one
association of the name "Charbucks" in the minds of
consumers is with the brand "Starbucks." No other
single response conies anywhere close to the number of
respondents who associate "Charbucks" with
"Starbucks" or coffee in general. This association is
even higher among those who are already familiar with the
"Starbucks" brand. More than one-half of all
respondents mentioned "Starbucks" or
"Coffee" as something that comes to mind when they
hear the name "Charbucks".
• The name
"Charbucks" creates many negative associations in the
mind of the consumer when it comes to describing coffee. It is
obviously not a name that any company would select to increase
the appeal of its product.
• "Starbucks" is
a very well known and popular brand name. The association of the
name "Charbucks" would only serve to damage the appeal
of the Starbucks brand.
"Starbucks" consumers are significantly more likely to
use the Internet to make purchases than those who aren't aware
of Starbucks. Thus, they are more likely to be exposed to a
coffee named "Charbucks" that is sold through the
Internet, and this exposure can only increase confusion with the
"Starbucks" brand and lessen the positive appeal of
the brand name.
SUMMARY OF QUALIFICATIONS
I have worked in the field of consumer survey research and
polling for almost 40 years, I
currently own and operate the consulting firm of Mitofsky
International, which does election and opinion research
worldwide, with clients in Russia, Mexico, Sri Lanka and the
United States. I am also Director of Edison Media Research
("Edison"), an international consumer research company
that conducts survey and similar consumer research for radio
stations, television stations,
newspapers, cable networks, record labels and other media and
As Director, my duties include coordinating statistical
analysis for Edison. In my career, I have designed, supervised and analyzed the
results of literally hundreds of surveys for organizations
including CBS News, The New York Times, The Wall Street
Journal, CNN and The Washington Post. I have also
done significant consumer research projects for many businesses,
including companies such as Avon, AT&T and General Mills. A
Summary of my work
and educational experience is set forth in my resume,, a copy is
attached hereto as Exhibit
I received a Bachelor of Science degree in Psychology from
Guilford College in 1958. I
have subsequently done graduate work at the University of North
Carolina and the University of
Minnesota, where I was a candidate for a Ph.D, in Mass
Communications. In the Spring of 1955, I was visiting Fellow at
the Shorenstein Center of Harvard University. In the Fall of
1995.1 was the Howard R. March Visiting Professor at the
University of Michigan, Department of
have published numerous articles and edited several texts on the
subject of opinion research. A list of these publications is
included in my resume. Throughout my career, I have been active in professional
organizations that serve the opinion research community. I am a
member of the American Association for Public Opinion Research
(serving as its President in 1988-89), the National Council on
Public Polls (serving as President from 1981-83) and the
Research Industry Coalition. I am also a Fellow of the American
I am familiar with the accepted principles of survey research, as
well as the tests for trustworthiness of properly conducted
surveys or polls, I have also read and am familiar with the
sections of the Manual for Complex Litigation (3d) (Fed.
Judicial Center. 1995) that relate to the standards governing
the admissibility of survey and polling evidence in civil
matters in federal courts.
Editor: A Meeting Place: The History of the American
Association for Public Opinion Research,
Carolina Press, 1993, (with Paul Sheatsley).
Editor: Campaign 78, Arno Press, 1979-
Editor: Campaign 76, Arno Press, 1977. (with Catherine
"A Short History of Exit Polls." in Lavrakas and
Holley, eds. Polling and Presidential
Election Coverage, 1991.
"How Pollsters and Reporters Can Do a Better Job Informing
the Public: A Challenge for
Campaign "96," and "A Review of the 1992 VRS Exit
Polls," (with M. Edelman) in
Lavrakas, Traugott and Miller, eds. Presidential Polls and the
News Media, 1995,
"Was 1996 a worse Year for Polls than I948? " Public
Opinion Quarterly, 1998
PRIOR EXPERT TESTIMONY
I participated in the following First Amendment trials as the
lead plaintiff's witness against state exit poll laws. A number
of states set unreasonable distances from a polling place for
interviewers to stand in order to conduct exit poll interviews.
Exit polls are conducted by news organizations on Election Day
with voters as they leave their polling places. These polls arc
used for election projections and analysis.
I do not know the legal citations for all the cases. Floyd
Abrams, Susan Buckley and others from Cahill, Gordon &
Reindel were the attorneys for cases 1, 2 and 3, below.
They were tried in federal courts on behalf of CBS News,
which was my employer at the time, and the other networks. The
New York Times and The Washington Post (owner of
the Everett Daily Herald)
participated in the first case.
Attorneys from Louisville, Kentucky, tried the fourth
case. They represented the local media. I was asked by Abrams to
participate as a witness. Apparently, the attorneys had been in
1. Daily Herald Co. v. Munro, 838 F.2d 380 (1988).
Trial was m Washington State in 1986. I was the major
witness for the plaintiffs. The verdict was in favor of the
plaintiffs (news organizations). It was appealed by the state to
the 9th circuit, and was upheld.
2. The networks asked for an injunction in federal court against
Florida's exit poll law. The trial was in Miami shortly before
the 1988 presidential primary elections. It commenced soon after
the 9th Circuit upheld the verdict against Washington State I
was the only network witness for the plaintiffs. Relief was
3. This, too, was a
request for an injunction in federal court in Atlanta against
Georgia's exit poll law. It was shortly after the Florida case.
Again, I was the only network witness for the plaintiffs. We
4. The Kentucky case followed the Florida and Georgia cases. I do
not remember the details of this appearance. I went to
Louisville for a trial, met with the attorney's, but do not
recall what happened in court. The exit poll statute was struck
down. I do not recall if this was a state or federal court.
Cahill, Gordon & Reitdel
80 Pine Street
New York, NY 10005
Prior Deposition Testimony
5. Early in 1995
Michael Huffington challenged Dianne Feinstein's election to
the U.S. Senate from the State of California. The
challenge was made in the Senate and was scheduled to be heard
by a Senate Committee.
Huffington claimed that there were fraudulent ballots cast in the
election that made Feinstein's victory doubtful. He based this
on estimates made from inspecting the voting records in the
sample of precincts in the state.
I was hired by Lloyd N. Cutler, Feinstein's attorney, to
write a memo that was part of a deposition contesting
Huffington's challenge. Reference to the deposition
appeared m a number of newspapers soon after it was filed.
Huffington eventually dropped his challenge.
Cutler & Pickering
M Street, N.W.
6. In 19981 gave a deposition in a South Carolina video gambling
case, Caldwell v Collins. I critiqued a survey submitted by the
plaintiffs in support of their suit.
My clients were the video gambling industry.
Mullins Riley & Scarborough, L.L.P
Building, Third Floor
7. In 19971 designed a survey for the lawyers representing
Merrill Lynch & Co in the bankruptcy suit brought by Orange
County, California. The survey was to be used in support of a
change of venue motion.
Tolles & Olson
New Montgomery St., 19th Floor
Francisco, CA 94110
8. I participated in the design of a survey for a trademark
lawsuit brought on behalf of Bill Blanks.
I worked for the defendant, Anchor Bay Entertainment.
I also critiqued the survey report of the expert witness
representing Blanks. This work was done with Edison Media
John C. Rawls
Blanc Williams Johnston & Kronstadt
1900 Avenue of the Stars, 17th floor
Los Angeles, CA 900067-4403
9. I conducted a survey in support of a change of venue motion
for the New York City policemen charged in the shooting of
Amadou Diallo. The venue was changed from the Bronx to
909 Third Avenue
New York, NY 10022
10. In 19971 evaluated a survey submitted by Arnold & Porter
titled "Attitudes Toward Cigarette Smoking." Arnold
& Porter represented the tobacco industry in the landmark
suit brought by the State of South Carolina. I worked for a
consultant to the law firm representing South Carolina.
McEvoy Foley - Suite 2330
West Monroe Avenue
11. Starting in about 1978 and continuing for about five years, I
consulted on an arbitration case that involved 18 major oil
companies. My client was Hunt Oil. The case involved the
distribution of fluids based on a complex arrangement among the
companies designed to keep their Libyan oil interests from being
taken over by the Libyan government. I designed a model to
maximize Hunt's profits, which were effected by various actions
they might take against the other oil companies. The first of
two law firms I worked for was Kramer Levin. The other firm was
Kramer Levin Nessen Kamin & Frankel
919 Third Avenue
York, NY 10022
12. In 19951 consulted with three law firms that had similar
cases involving the Upjohn pharmaceutical company and the drugs
Halcion, Xanax and Versed. I examined Upjohn documents about the
drugs for each of the attorneys listed below.
Kerry E. Connolly
Coblence & Warner
415 Madison Avenue
York, NY 10017
C and D
Center Business Park
Hills, CA 91367
Edison Media Research was paid $30,000 to conduct this research.
I am being compensated for my time expended in study and
testimony offered in this case at the rate of $400/hour. My
compensation is not contingent upon the results of my study or
the substance of my testimony.
How the Survey was Conducted
This report summarizes the results of a national telephone survey
conducted by Edison Media Research regarding consumer reaction
to the name "Charbucks." We conducted a national
survey consisting of 600 telephone interviews with adults 18
years and older conducted between March 22'td and March 30'h
2002. The average length of the interviews was seven minutes.
The households were contacted using random digit dialing, and
one individual in each household was randomly selected to be
interviewed. The final results were weighted to take into
account the size of the household and to reflect the national
age and sex demographic breakdown as estimated by the United
States Census Bureau. With a sample size of 600 respondents the
sampling error at a 95% confidence interval is ± 4%.
The questionnaire that was used is included with this report,
attached hereto as Exhibit "B." It contains several
open-ended questions that were used to record the respondents'
reactions to the word "Charbucks" in their own words.
These responses were then coded into groups of similar responses
for tabulation. That tabulation is attached hereto as Exhibit
"C." A spreadsheet with the actual verbatim comments
by each respondent to each question is also included with this
report, attached hereto as Exhibit "D." m addition, a
summary of the survey findings is attached hereto as Exhibit
The main objective of this survey was to determine how
consumers react to the name "Charbucks." The
questionnaire was designed so that this key question would be
the first substantive question asked, so that no other questions
would influence the initial reaction of the respondent to the
Q. 6 "What is the FIRST THING that comes to your mind when
you hear the name 'Charbucks'
(NOTE: Percentages add up to 104% because some respondents gave
more than one coded response.)
The results are clear. By &r the number one answer was that
the name "Charbucks" reminded the respondents of the
name "Starbucks." Nearly one-third of all respondents
(31%) gave this response. AJO additional 9% said that the name
"Charbucks" made them think of "coffee." It is
logical to assume that these respondent thought about coffee
because of the association with "Starbucks."
The next most common responses were each mentioned by fewer than
10% of the respondents. Several of these responses dealt with
"Barbeque" or "Meat" (presumably from the
"char" part of the name) and a few dealt 'with
"Money" (no doubt from the "bucks" part of the
The overwhelming nature of the association of the word
"Charbucks" with the brand "Starbucks" becomes
even clearer when the results of this question are taken from just
the respondents who say that they are familiar with the brand of
coffee called "Starbucks." Nearly four out of five
respondents (79%) said that they are familiar with the
"Starbucks" brand and among this group 39% associated
the word ''Charbucks" with "Starbucks". An
additional 10% associated the word "Charbucks" with
coffee. Thus, about one half of all respondents who are familiar
with "Starbucks" would associate the name
"Charbucks" with either "Starbucks" or coffee.
Respondents were then asked if anything else came to their mind
when they heard the name "Charbucks."
Q. 7 "What OTHER impressions do you get from the name
'Charbucks' spelled C-H-A-R-B-U-C-K-S?"
When the results of this question are combined with the results
of the previous question, the responses are as follows
add up to greater than 100% because some respondents gave a
response to the follow-up question.)
Again, "Starbucks" is the top response. More than
one-half of all respondents mentioned either "Starbucks"
or "Coffee" as the things they think of when they hear
the word "Charbucks."
Taking into account that nearly one-fifth of all
respondents could not come up with any answer, nearly two-thirds
of respondents who had an answer to these questions mentioned
either "Starbucks" or "Coffee." And these
percentages are higher still among those who are familiar with the
brand name "Starbucks."
Q- 12 "Are you
familiar with a brand of coffee and a company called 'Starbucks'
spelled S-T-A- R-B-U-C-K-S?"
Don't Know/No Answer
Q, 14 "Do you
have a positive or a negative impression of 'Starbucks"
Base: Those familiar with' Starbucks'
Don't Know/No Answer
The potential damage that the name "Charbucks" could
inflict on the brand name "Starbucks" is also clear from
the results of this survey. "Starbucks" is an extremely
well known brand name with 79% of respondents familiar with the
brand. It is also a highly popular brand name. Among those who are
familiar with the name "Starbucks", the brand has a
positive-to- negative rating of more than 5-to-l, with 66% of
respondents having a positive impression of "Starbucks"
while only 13% of respondents have a negative impression of the
Q. 11 "Would you have a positive or a negative impression of
a coffee called 'Charbucks'?"
The name "Charbucks" conjures many negative
connotations. In fact, 15% of the respondents said that they would
expect a coffee called "Charbucks" to be charred, burnt,
bitter or smokey. When
asked whether they would have a positive or negative impression of
a coffee called "Charbucks" the results were negative
with 43% saying that they would have a negative impression while
only 31 % would have a positive impression. The results for this
question are even more negative among those who are already
familiar with the "Starbucks" brand name.
Among this group 48% would have a negative impression of
the name "Charbucks" while only 30% would have a
Q. 14 "Have you ever made a purchase online from an Internet
who are familiar with Starbucks
who are not familiar with Starbucks
This result supports the finding that the selling of a coffee
called "Charbucks" through the Internet would damage the
standing of the "Starbucks" brand. Those who are
familiar with the "Starbucks" brand name are more than
three times as likely to make purchases over the Internet (52%)
than those who are not familiar with "Starbucks" (16%).
In that a majority of those familiar with "Starbucks"
shop online, the use of the name "Charbucks" for a type
of coffee sold through the Internet would both cause confusion
over the supplier of that coffee and also create negative
impressions about the brand name "Starbucks."
I declare under penalty of perjury that the foregoing is
true and correct.
Executed this 8th day of April 2002 at New York, New York.
WARREN J. MITOFSKY
1 East 53rd Street, 5th Floor
New York, NY 10022