findings, but also help dispel the myth that baking soda was the most effective ingredient available at absorbing common household odors found in carpets." Id. Moreover, S.C. Johnson determined that the "'five times better' [claim] offered good results while requiring less advertising expenditure and ranked highest in purchase interest." Id. at P 15.
In November 1993, Sarah S. DiVall, S.C. Johnson's Associate Research Services Manager, supervised a qualitative market research project concerning the "five times better claim." See Rebuttal Affidavit of Sarah S. DiVall at P 2. During the market tests, ten focus groups composed of three consumers each were exposed to three possible television advertisements, including the commercial which was eventually aired. Id. Thereafter, an independent moderator questioned the focus groups regarding what the potential S.C. Johnson's television commercials had communicated to them. Id. Sarah DiVall observed the consumer groups through a two-way mirror. See Cross-Examination of Sarah S. DiVall dated October 5, 1994. During cross-examination, Ms. DiVall testified that consumers linked the "five times better claim" to how the product actually worked at eliminating odors and did not associate the claim with a five-fold reduction in odor molecules. Id. Ms. DiVall conceded, however, that consumers understood the "five times better" message to mean that S.C. Johnson's products had a five-fold capability of eliminating odors that people smell. Id.
Thus, in April 1994, S.C. Johnson began its "Five Times Better" advertising campaign on television, on its product cartons, and in various magazines. See Pl. Trial Exs. 5, 6, 8, and 9. Both the audio and visual elements of the television commercial claim that Glade regular formulation and Glade Wet'n Dry formulation perform "Five Times Better" than baking soda. See Pl. Trial Ex. 8. In the audio segment of the television commercial, S.C. Johnson makes the following claims: (1) "Glade . . . is now five times better than baking soda"; (2) "It's five times tougher"; (3) "absorbs tough carpet odors, five times better than baking soda"; (4) "It's five times fresher"; and (5) "It's five times better than baking soda." Id. Defendant S. C. Johnson reinforces its five-fold claim through the use of the following visual elements: (1) five men, sitting around a dining room table, smoking cigarettes in the third frame, followed by five empty chairs around the same dining room table in the fourth frame, and (2) five golden retriever puppies allegedly urinating on a living room carpet in the seventh frame, followed by three puppies in the eighth frame, only one puppy in the ninth frame, and no puppies remaining in the tenth frame in which a word overlay appears stating "Five Times Better Than Baking Soda." Id.
The "Five Times Better" claim also appeared on the various Glade packages. Id. at Exs. 5-6. Specifically, in large, red and black lettering on a yellow border, on the top front of the package appeared: "ABSORBS ODORS 5 TIMES BETTER than BAKING SODA." Id. Additionally, it is worth noting that the same message appeared on the back of the package. Id. Also, in April, 1994, defendant S.C. Johnson began advertising its newly reformulated products in various women's magazines. Id. at Ex. 9. In the print advertisement, S.C. Johnson claims that its new products "absorb five times better than baking soda. That's five times the absorbing power to keep your home smelling fresh and clean." Id. Moreover, at the bottom of the print advertisement, in large, hold lettering, S.C. Johnson asserts: "It's five times better." Id.
E. VARIOUS SENSORY TESTS PERFORMED
1. Plaintiff Church & Dwight's First Internal Sensory Study
After learning of S.C. Johnson's "Five Times Better" advertising campaign, plaintiff Church & Dwight conducted its own in-house sensory study to compare the efficacy of the newly formulated Glade products with baking soda. See Pl. Direct Evidence, Testimony of Raymond S. Brown at P 13. Specifically, Church & Dwight conducted its sensory tests on the following products: "Glade Potpourri Carpet and Room Deodorizer Spring Orchard; Glade Potpourri Wet'n Dry Formula Carpet and Room Deodorizer Fresh Scent; Arm & Hammer Potpourri Carpet Deodorizer Country Scent; Arm & Hammer Potpourri Carpet Deodorizer Country Scent; and Arm & Hammer Baking Soda." Id. at P 14. The odor panelists used in this first study "were drawn from a pool of Church & Dwight employees who have been trained and are experienced in rating the intensity of odors. . . ." Id. at P 16. Because some of the test products contained fragrance, Church & Dwight attempted to design its sensory test to best control the fragrance effect. Id. at P 15. It "did this by conducting the test over an extended period to allow the fragrance to dissipate and by directing [the] odor panelists to rate only the intensity of the malodor itself and to ignore the fragrance." Id.
To conduct the sensory test, Church & Dwight employed carpet swatches that had been exposed to cigarette smoke, cat urine, and mildew malodors. Id. at P 18. "Following odorization, the test products were applied to the carpet swatches in an amount reflecting average consumer use, and were then vacuumed up. Some of the malodorized swatches were not treated with any test product, and were instead used by the panelists as malodor references." Id. at P 19. After application of the test products, the panelists evaluated the carpet swatches in paired comparisons at 2, 24, 48, and 72 hours. Id. at P 20-21. The panelists were instructed that the first swatch they "were exposed to should be considered to have a malodor intensity rating of 10. The panelists were then instructed to rate the malodor intensity of the second swatch in relation to the first." Id. at P 21. According to Church & Dwight, these sensory tests revealed that there was "little, if any, difference in the odor elimination properties of the Glade products when compared to baking soda. When compared to the Arm & Hammer carpet deodorizer, the Glade product performed at parity." Id. at P 23; see also Pl. Trial Ex. 21.
2. The TRC Sensory Study
Following the first internal sensory study, Church & Dwight "determined that it would be appropriate to engage an outside independent testing firm to conduct independent sensory tests." See Pl. Direct Evidence, Testimony of Raymond S. Brown at P 24. Thus, Church & Dwight retained Dr. Amos Turk and TRC Environmental Corp. (hereinafter "TRC") to conduct additional sensory tests. Id. at PP 24-26. The TRC study tested the following products: Arm & Hammer Baking Soda; Arm & Hammer Carpet Deodorizer-Original Potpourri; Glade Potpourri Carpet & Room Deodorizer--Country Garden; and, Glade Potpourri Carpet and Room Deodorizer--Wet'n Dry Formula Fresh Scent. See Pl. Trial Ex. 22 at 1. The TRC study was conducted as follows:
1 square foot segments of plush nylon carpet were odorized with either cat urine or cigarette smoke, treated with test product, vacuumed and then evaluated by TRC's trained odor panel 2, 24, 48 and 72 hours after product treatment for perceived malodor level. The panelists were asked to rank the intensity of the malodor only (i.e. ignore the fragrance of the deodorizer) on a scale of 0 to 20, with 0 as the no odor level, and 20 as the extremely high odor level.
Id. The TRC study revealed that the Glade products did not reduce the odor intensity of cat urine and cigarette smoke by a five-fold decrease. Id. at 4. Rather, the TRC panelists concluded that, at 24 hours, the Glade products produced only a 2.16 fold decrease in cat urine malodor as compared to baking soda. Id. Ultimately, the TRC test demonstrated that "there was no significant difference in the efficacy of the four carpet deodorizers in their ability to decrease the intensity of malodors over time." Id. at 6.
3. Plaintiff Church & Dwight's Second Internal Sensory Study
Because both Church & Dwight's first internal sensory study and TRC's study used fragranced products, Church & Dwight endeavored to conduct a sensory study with unfragranced products. See Pl. Direct Evidence, Testimony of Raymond S. Brown at P 27. Thus, after obtaining the unfragranced Glade product be for the regular and Wet'n Dry formulations from S. C. Johnson, Church & Dwight conducted a second sensory test. Id. at P 28. Church & Dwight employed the same procedures in the second sensory test as were used in its first sensory test. Id. at P 29. Ultimately, Church & Dwight's second sensory study revealed that
once again, . . . GLADE products do not "absorb odors five times better than baking soda." At none of the evaluation periods did the ratios even come close to 5:1. In fact, the performance ratios are even closer in this test than in the previous tests: the largest ratio of GLADE's superiority to baking soda is 1.39:1, and most are closer to parity. Baking soda is in fact rated superior to Glade at a number of the evaluation periods.
Id. at P 30.
F. MARKET SURVEY EVIDENCE
1. The Bruno & Ridgeway Survey
On June 29, 1994, Church & Dwight's counsel contacted Joseph M. Ridgeway, President of Bruno & Ridgeway Research Associates, Inc. (hereinafter "Bruno & Ridgeway"), to conduct "an advertising comprehension study of a television commercial for Glade carpet deodorizer[s]." See Pl. Direct Evidence, Testimony of Joseph M. Ridgeway at P 9. Mr. Ridgeway explained that
it quickly became apparent that the precise issue to be surveyed would require some sort of focused question which required the respondents to chose between two or more alternative meanings of the "five times better" claim. . . . It became apparent that the simplest -- and fairest -- way of doing so was to give the respondents a choice between the interpretation urged by Church & Dwight and the interpretation urged by S. C. Johnson. Of course, we also gave the respondent the option of choosing "neither" of those alternatives.