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MAY VUE 2007


									“will there be fries with that?”
a discourse on the benefits and risks
of probing

by Ruth M. Corbin, Ph.D., LL.M.

   We know it’s just good sales strategy,    Chalk one up for the power of probing.         Whatever their reason – busy lives,
and we still succumb. Drive through a           There is at least sixty years of evidence   crowded brains, feeling of depersonaliza-
McDonald’s take-out and order the            in cognitive psychology that the “explicit     tion, ambiguity of where and how to do-
Quarter Pounder. Expect the following        ask” elicits latent information, behaviour,    nate – a personalized request delivered by
comeback question, courteously deliv-        or attitudes that may not emerge imme-         phone, letter, or on the doorstep of their
ered by the well-trained server: “Would      diately. Concrete cues of something spe-       home, can elicit from them a generous
you like fries and a drink with that?” You   cific being requested are triggers for         donation. Another example is taken
hadn’t originally planned to have the        additional responses to a situation. An        from studies of so-called bystander apa-
whole meal, but the explicit question        example is provided by the research and        thy in emergencies.1 Why do some by-
elicits a latent desire – your taste buds    experience of the United Way. A market         standers just stand and watch when a
tickle with the remembered taste of          segmentation of United Way donors re-          person collapses on a subway platform?
those franchised fries. “Okay, I’ll have     vealed a segment of consumers who are          One of the reasons documented by social
the fries and drink too,”                         charitable and well-meaning but           scientists is the ambiguity of what action
you respond.                                                           need to be asked     is required. But just have one person take
                                                                              to donate.    leadership of the crisis and give instruc-
                                                                                            tions to others (“You—go to the pay-
                                                                                            phone and call 911”) and helpful
                                                                                            behaviour can be elicited from many of
                                                                                            those previously frozen by inaction. The
                                                                                            comprehensive research program of
                                                                                                   Daniel Kahneman and Amos
                                                                                                               Tversky2 expanded the
                                                                                                                 body of available evi-
                                                                                                                   dence that people’s
                                                                                                                      judgments are
                                                                                                                        affected by
                                                                                                                         cues immedi-
                                                                                                                           ately avail-
                                                                                                                            able    to

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                                                                                           This allows for a more complete assess-
                                                                                           ment of the respondent’s first impres-

                                                                                              One cause for legal dispute between
                                                                                           companies is whether a name, symbol or
                                                                                           design has become sufficiently distinc-
                                                                                           tive of a particular single source to func-
                                                                                           tion as a trade-mark. STARBUCKS, for
                                                                                           example, is inherently a distinctive name
                                                                                           in North America for coffee services.
                                                                                           SECOND CUP may not be inherently
                                                                                           a distinctive name, but it likely has ac-
                                                                                           quired distinctiveness through many
                                                                                           years of use and advertising in associa-
                                                                                           tion with coffee services. Distinctiveness
                                                                                           is an important component of the tests
                                                                                           for whether a name, symbol or design is
                                                                                           protectable under the Trade-marks Act.
                                                                                           The issues for testing distinctiveness
                                                                                           came into sharp relief in 2004 when Mi-
                                                                                           crocell, owner of the FIDO trade-mark,
   Market researchers have drawn on             Regulators and courts have expressed
                                                                                           took exception to the use of dogs in ad-
work by cognitive psychologists and lin-     approval for open-ended questions as
                                                                                           vertising by Telus, Bell and Rogers to
guistics experts to strengthen the scien-    part of a funneling approach to an inter-
                                                                                           promote their cellular phone services.
tific foundation of questionnaire design.3    view, with questions moving from the
They have found that open-ended ques-        general to the specific, and with appro-
tions designed to capture attitudes, ex-     priate probes. A hearing officer of the
perience or opinions can frequently elicit   Trade-marks Opposition Board offered
more comprehensive and valid responses       the following advice with respect to
when followed by a probe: “Anything          measuring reactions to trade-marked
else?” “Any other reasons?”                  names, symbols or designs.
   There are several reasons why probes
to open-ended questions are frequently       [A] survey should be designed to elicit a
considered essential. Some people are        consumer’s first impression by the use of
less forthcoming or more reserved by na-     open-ended questions such as “What do
ture. Some may be impatient to move          you think of when you see (or hear) this
the discussion along. Some may assess        mark?” or “What word comes to mind
subjectively the amount of information       when you see this mark?” This allows a
expected by the interviewer and stop be-     respondent to reply in any number of
fore they have said everything on their      ways. He might state that the mark re-
minds. Whatever the cause for initially      minds him of another mark, that it re-
limited answers, respondents who are         minds him of a particular company, that
encouraged by way of a probe question        he associates it with particular wares or
to disclose more of their opinion, experi-   services, that he associates it with a par-
ence or attitude, will frequently do so.     ticular emotion or feeling; etc. Such a
Put another way, the absence of probing      question should be followed up by one
to open-ended questions in some cir-         or more prompts in which the respon-
cumstances risks incomplete or selective     dent is asked if there is anything else he
responses. It may even result in a bias in   thinks of when he sees the mark or what
the data toward the most popular, com-       does he think of when the mark is asso-
mon or obvious answers.                      ciated with particular wares or services.

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PROBING MAKES A DIFFERENCE                    WHAT ABOUT THE JUNK?                            added. Since Telus, Bell and Rogers re-
IN TESTS OF DISTINCTIVENESS                      A dissenting researcher may complain         ally were using dogs in advertising at
  Are dogs distinctive of a particular        about the opposite risk. “Asking ‘any           about that time, the use of probing was
company in the field of cellular tele-        other companies’ may make respondents           consistent with more valid evidence.
phone services? Here is a possible survey     think you want more answers, that their         Since Virgin and Nokia (who have not
question to test that proposition.            first answer isn’t good enough. Then you         been known for using dogs in advertis-
                                              could get guessing and junk answers,            ing) were mentioned by two people in
A. “What cellular telephone company or        which could weaken the evidence that            the group where the probe was worded
companies, if any, use pictures of dogs in    the trade-mark really is distinctive.           “Any other companies?” there was evi-
their advertising?”                           That’s not fair to my client.”                  dence that too broad a probe question
                                                 In the author’s opinion, that com-           could introduce guessing.
   In 2004, that question produced an         plaint does not contradict the necessity
estimate of 58% of cellular telephone         of a probe. Rather, it reminds survey de-       CASE LAW EXAMPLE
users saying FIDO. Eight percent (8%)         signers of their onus to design questions          Canadian Tire recently received op-
named FIDO and at least one other             or experimental designs which minimize          position to its registration of the name
company, most frequently Telus, but           the risk of a different kind of bias. They      NORDIC, combined with a snowflake
also scattered mentions of Rogers or          have to avoid appearing to pressure the         design, for winter tires. The opponent
Bell. Note that although the question al-     respondent or to create a social desirabil-     was a Quebec company selling auto
lowed for more than one name (“what           ity bias or demand effect.5 The market-         parts and tools, and doing business un-
company or companies”), it contained          ing research literature offers several ideas.   der the name Accessoires d’Autos
no probe.                                     One option is to rephrase the probe as          Nordiques Inc. The opponent claimed
   A parallel questionnaire was imple-        “Any other companies, or not?” The              that NORDIC and Nordiques sounded
mented with a matched demographic             phrase “or not” is thought to issue an ex-      the same to a francophone, and that
sample of cellular telephone users, which     plicit cue that there may not be other          Canadian Tire’s brand would not distin-
contained a probe in that question. The       companies and that an answer of “no, no         guish its tire products from the products
probe question was worded                     others” is readily acceptable. Corbin-          and services of Accessoires d’Autos
                                              Partners Inc. expanded the dog study de-        Nordiques Inc. Canadian Tire re-
B. “Any other companies? Any others?”         scribed above to incorporate an extra           sponded with a survey of what the name
                                              group of respondents who were asked             NORDIQUES would bring to mind,
   Now 25% offered the name of a sec-         the probe at Question B with the words          even among those who would think
ond company – more than three times           “or not” added at the end of the probe.         “Nordiques” to be the spelling of Cana-
the percentage of “additional mentions”       As shown in the middle bar in the ac-           dian Tire’s winter tires. In the course of
compared to the survey where there was        companying graph, the tendency to of-           the survey, purchasers of auto parts and
no probe. Telus, Rogers and Bell were         fer additional names declined to a              tools were shown a card with the word
again featured among the additional           modest extent. In particular, when the          NORDIQUES printed on it. They were
mentions, as was Virgin and Nokia.            “or not” was added, there were no men-          asked the following.
Clearly, people had more to say after the     tions of Virgin or Nokia.
initial part of the survey question but of-                                                   “Please tell me what, if anything, first
fered it only after a probe.                                                                  comes to mind when you see what is
   Who benefits from the omission of a                                                         printed on this card?”
probe question? The party who main-
tains a hypothesis of distinctiveness. No                                                     “Did anything else come to mind when
probing makes it less likely to obtain                                                        you saw what appeared on that card or
more than one association. Arguably, if                                                       not?”
researchers are working for a client who
believes its name, symbol or design is                                                        [If so] “What else?”
distinctive, they are obliged to allow for
probing. Otherwise, the absence of a                                                             As reported by the court,6 “the most
probe question risks being self-serving          In other words, the strength of evi-         interesting conclusion from the survey
by under-reporting the number of other        dence of distinctiveness of dogs in asso-       was the 80% of those surveyed as a mat-
associations which respondents may            ciation with cellular services declined         ter of first impression thought of the
hold.                                         somewhat when a probe question was              former [Quebec] hockey team when pre-

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sented with the word NORDIQUES.                    A control condition is another tool               VUE MAGAZINE IS PUBLISHED BY THE
Only 4% thought first of a store that           available to discount for guessing. The            MARKETING RESEARCH AND INTELLIGENCE
sells auto-parts.” The court approved the       design of effective control conditions has            ASSOCIATION TWELVE TIMES A YEAR

survey design as valid and relevant, rely-      been discussed in previous columns in
ing on it in part for its decision to over-     this magazine.
turn an earlier judgment of the                    Researchers’ judgments of question
Trade-marks Opposition Board. The               design for trade-mark surveys should al-
court found that NORDIC and the                 ways be informed by the ultimate goal –
snowflake design could function as a dis-        to learn what really comes to mind in                                 May 2007
tinctive trade-mark and permitted Cana-         the everyday lives of consumers when
dian Tire to register it.                       they encounter a name, symbol or de-
                                                                                                   CHAIR, PUBLICATIONS
                                                sign in connection with goods and ser-
                                                                                                   Barb Justason, CMRP
SUMMARY                                         vices in the marketplace.                          Justason Market Intelligence
   Consideration should always be given                                                            Tel: (604) 783-4165
to whether an open-ended question re-           REFERENCES                               
garding attitude, opinion or experience         1
                                                 B. Latane & J. Darley. “Bystander ‘Apathy.’”
                                                American Scientist, 1969: 57, 244-268.             ADVERTISING RATES
does or does not require a follow-up                                                               The following are the sizes of advertisements that
probe. Accumulating scientific evidence                                                             we use. Inserts can also be sent along with “vue”
                                                  See e.g., D. Kahneman & A. Tversky.              in our customary clear packaging.
suggests that probes may be necessary in        “Choices, Values, and Frames.” American Psy-
certain situations to increase the likeli-      chologist, 1984: 341-350.
                                                                                                   Ad sizes (width x height in inches)    Full colour

                                                                                                   1 page            8 1/2    x   11           $1,279.00
hood of obtaining valid measurement.                                                               2/3 page          4 5/8    x   9 1/2        $1,039.00
   The seemingly small technical point          3
                                                 R. Tourangeau, L. J. Rips, & K. Rasinski. The     1/2 page (A)      7        x   4 3/4          $799.00

in survey research about follow-up              Pscyhology of Survey Response. Cambridge: Cam-     1/2 page (B)      3 7/16   x   9 1/2          $799.00
                                                                                                   1/3 page (A)      7        x   3              $599.00
probes is central to tests of distinctive-      bridge University Press, 2000.
                                                                                                   1/3 page (B)      2 1/4    x   9 1/2          $599.00
ness (or acquired distinctiveness) in law,                                                         1/4 page (A)      7        x   2 1/4          $479.00
                                                 “Canada Post Corp. v. Mail Boxes Etc.” USA                          3 7/16       4 3/4
where the very issue is whether con-                                                               1/4 page (B)               x                  $479.00
                                                Inc. (1996), 77 C.P.R. (3d) 93 at 103              1/8 page          3 7/16   x   2 1/4          $219.00
sumers are aware of none, one, or more          (T.M.O.B.). See also “Canadian Tire Corp.          Insert (please provide 2100 copies)         $1,219.00
than one company in association with a          Ltd. v. Cooper Tire & Rubber Co.” (1994), 59
                                                                                                   GST must be added to all rates.
particular name, symbol or design.              C.P.R. (3d) 402 at 407-08 (T.M.O.B.).
                                                                                                   Frequent advertisers receive discounts. Details
   Use of an explicit invitation through                                                           can be found by going to:
probing for more information needs to
                                                  Social desirability bias and demand effect are
                                                                                                   Please email to book your ad.
be tempered with careful wording to             technical terms describing documented biases
                                                that could operate in survey interviews in the     The deadline for notice of advertising is the
avoid the pressure to guess. Market re-                                                            20th of the month. All advertising material must
                                                absence of properly designed questions.            be at the MRIA office on the 25th of the month.
searchers have techniques available to
them to reduce the risk of different kinds      6
                                                 “Canadian Tire Corporation, Ltd. v. Acces-        ADDRESS
                                                                                                   The Marketing Research and Intelligence
of biases being introduced by probing.          soires d’Autos Nordiques, Inc.,” Federal Court     Association
                                                File T-1003-05.                                    L’ Association de la recherche et de l’intelligence

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 Dr. Ruth M. Corbin is CEO of CorbinPartners Inc. and Adjunct Professor at                         Fax: (905) 602-6855
 Osgoode Hall Law School. She has served on the boards of several public                           Email:
 companies and not-for-profit organizations. In 2006, she was named as one of
 Canada’s “Top 100 Women”, in the category of Trailblazers and Trendsetters, for                   PRODUCTION:
 her work in forensic market research. She may be reached at (416) 413-7600.                       LAYOUT/DESIGN
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