$54MM Jury Award Reversal: Black & Decker v. Positec USA

Expertise You Need + Experience You Want


In September 2013, Rhonda Harper was hired by Black & Decker to complete a trade dress infringement survey to determine whether likelihood of confusion existed, and if so to what extent, among consumers regarding the source of Positec's Rockwell® product.

Harper's survey results were not favorable to Black & Decker's position in the case. Ultimately, her survey was buried and they and hired a different expert to complete a separate survey.

The Case

First, The Win

Using the results of the new expert's survey, Black & Decker won the case and was awarded $54 million. Black & Deckers’s new survey expert's testimony and survey was deemed the "linchpin" in the case (Black & Decker Corp. v. Positec USA Inc., September 11, 2017, Dow, R.).

Harper's Black & Decker survey results were so conclusively different than the new expert's survey results that she had a hard time reconciling it: "It just didn't make any sense based on what I knew."

Then, The Predictable Reversal

Then, not surprisingly it happened - the jury award reversal: (September 12, 2017) Judge Erases Black & Decker $54M Trade Dress Win "because Plaintiff’s case was constructed upon a hopelessly flawed consumer survey." Source: https://www.jdsupra.com/legalnews/flawed-consumer-survey-wipes-out-54-69481/

Rhonda Harper's Survey Structure and Opinion

The Black & Decker likelihood of confusion survey employed a scientific experimental survey design consisting of two survey cells:  (1) a test or experimental survey cell designed to measure likelihood of confusion, if any, with respect to the source, authorization or approval of, or business affiliation of Defendant’s product sold in conjunction with the Rockwell® trade dress; and (2) a control survey cell designed to measure the extent of mismeasurement in the test cell survey results. Both cells deployed a “ghost” brand to identify mismeasurement. This survey was designed to conform to the survey design preference of the Patent and Trademark Office Trial and Appeal Board.

In total, 1,155 interviews were completed in this Black & Decker likelihood of confusion survey; in the test cell 850 and 305 in the control cell. The survey stimuli utilized in the survey were either a computer screen showing Defendant’s package trade dress (test cell) or a computer screen showing the Plaintiff’s package trade dress (control cell).  The brand names in each trade dress image were disguised.

"It is my considered opinion, based upon my education, background, and professional experience, and based upon my review and analysis that the survey results do not support a finding of likelihood of confusion.  The survey results evidence that the relevant universe of potential purchasers of power tools bearing the Rockwell® trade dress are not likely to be confused or deceived by the belief that it is that of DeWalt®."

source: Black & Decker Expert Report of Rhonda Harper MBA


Contact: Rhonda Harper at 214-244-4608

Rhonda Harper - Expert Witness

Rhonda Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error.

Located in Dallas, TX, Rhonda Harper is a former Fortune 100 C-Suite Executive in marketing, branding, consumer research, strategy, licensing, and advertising. Also a former Adjunct Marketing Professor, she has been retained by more than 95 law firms since 2005. Harper has a focus on Trademark and Trade Dress Infringement, Misleading and Deceptive Advertising, Licensing, and Commercial Reasonableness cases. She has conducted  50+ intellectual property Lanham Act surveys, produced 75+ reports, been deposed 50+ times, and served in 20+ trials and arbitrations.