- 41 -
identifies the economic interests that are benefited by the
litigated expenses as the various brands of cigarettes to which
the litigated expenses pertain. Respondent adopts the term
“brand equity” to define the economic value inherent in a
successful brand. Dr. Bajaj testified as to the major elements
of brand equity: (1) brand name awareness, (2) brand loyalty,
(3) perceived quality, and (4) brand association. He describes
those elements as follows:
Brand name awareness comes from advertising, as well as
from previous use or from word or mouth. Brand loyalty
is primarily a result of being satisfied with the
product from prior use. Perceived quality has two main
elements: (1) a user understands the product and has
an opinion on its quality, [and] (2) advertising and
package design can create a “personality” for the
product. For example, Mercedes cars are considered
luxurious, while Volvo cars are considered safe. * * *
Finally, brand associations can be about imagery
created through advertising or other means. * * *
Dr. Bajaj is of the opinion that the litigated expenses “created
intangible assets that are inseparable from brand equity and
goodwill”.
Petitioner does not dispute that (1) advertising campaign
expenditures (or expenditures for graphic design) may contribute
to trade dress or (2) trade dress is protected by law.
Petitioner points out, however, that trade dress is in fact also
a product of ordinary business advertising, including what
respondent labels as advertising executions. See id. (“A
product’s image may be created by words, symbols, collections of
Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 NextLast modified: May 25, 2011