Docstoc

Court No

Document Sample
Court No Powered By Docstoc
					Court No. T-1867-08
                                  FEDERAL COURT
BETWEEN:
                 EMPRESA CUBANA DEL TABACO, trading also as
                                   CUBATABACO


                                                                                Applicant
                                          -and-


                          CORPORACION HABANOS S.A.
                                                                                Applicant
                                          -and-


                         TEQUILA CUERVO, S.A. DE C.V.
                                                                             Respondent


                    AFFIDAVIT OF DR. GURPRIT S. KINDRA




I, GURPRIT S. KINDRA, of the City of Ottawa, Ontario, MAKE OATH AND SAY
AS FOLLOWS:
Qualifications
    1. I am currently a Professor in the Telfer School of Management at the University
    of Ottawa and I have held that position for the past 28 years.
    2. I teach Marketing at the MBA and Undergraduate levels, on an ongoing basis. In
    the past, I have taught Consumer Behaviour and Promotional Management.
    3. As a visiting professor, I have also taught e-Marketing at Sciences Po in Paris and
    Strategic Marketing at the Bucharest Academy of Economic Studies, among other
    institutions.
4. From January 2007 to December 31, 2007, I served as Associate Dean of
Graduate and External Programs, in the College of Business Administration at
California State University, Sacramento. In this capacity, I was responsible for the
strategic and day-to-day management of all graduate level programs, including the
EMBA.
5. I received my Ph.D. from the University of Iowa in 1981 and my M.A. from the
same university in 1982. I also hold an M.B.A. from Northwest Missouri State
University (1977) and a B.Sc. from Dalhousie University (1976).
6. I have expertise in the subject of marketing, with a particular focus on consumer
behaviour. Through research, teaching, and consulting work I have also gained
expert knowledge of the organization of corporate entities.
7. I have conducted my own research in this field and have published approximately
16 papers in refereed journals and 21 papers in scholarly conference proceedings; I
have also prepared 21 invited presentations and technical reports as well as various
working papers.
8. I am the co-author of Consumer Behaviour: the Canadian Perspective; this was
the one of the earliest Canadian texts on the subject in this country and was a
standard textbook used in many Canadian universities from 1990 until about 1996. I
was also the contributing editor of Marketing in Developing Countries (1984) and of
Marketing Strategies for the Health Care Sector (1990).
9. I am the author of an award-winning article entitled “De-marketing
Inappropriate Health Care Consumption in Canada.”
10. Throughout my career, and particularly in the last 15 years, I have been
consulted by various organizations, primarily in Canada, on issues like the use of
fear in advertising and the de-marketing of tobacco products. I have gained my
experience in marketing as it relates to the field of health policy through my
participation in research and in consulting for many organizations such as Health
Canada, Industry Canada, and the World Bank.
11. In 1992, I appeared before the Parliamentary Sub-Committee on Health to
discuss the labeling of beer and other alcoholic beverage containers in relation to the
prevalence of fetal alcohol syndrome in Canada. In 1995, I was a co-author of an
Expert Panel report to Health Canada on Possible Effects of Plain and Generic
Packaging of Tobacco Products.
12. Currently, I am consulting for the World Bank to develop communications
strategies for parliamentarians in emerging democracies. I am also engaged as an
Expert by the Department of Justice Canada, in a lawsuit involving direct-to-
consumer (DTC) advertising of prescription drugs in Canada.
13. Attached to this Affidavit and marked as “Exhibit A”, is a copy of my
Curriculum Vitae, which provides details my professional history.
Mandate
   14. I was retained by MBM Intellectual Property Law L.L.P. to provide my
   professional opinion of the following questions.
              In your professional opinion, do pop culture references to
              brands and/or trademarks have any significance? If yes,
              please explain.
              In your professional opinion, do pop culture references to
              brands and/or trademarks give you any information
              regarding the extent to which that brand and/or
              trademark has become known? If yes, please explain.
              In your professional opinion, do North American pop
              culture references to the word COHIBA give you any
              information regarding the extent to which the COHIBA
              brand and/or trademark, owned by Corporacion
              Habanos S.A., have become known in Canada? If yes,
              please explain.

              Methodology
   15. The methodology I used in considering this question and preparing my opinion
   included watching scenes from three movies, namely “Hotel Rwanda,” “Into the
   Blue,” “Bad Boys II,” all via DVD. A DVD of “Hotel Rwanda” is attached to my
   affidavit as “Exhibit B”, a DVD of “Into the Blue” is attached to my affidavit as
   “Exhibit C”, and a DVD of “Bad Boys II” is attached to my affidavit as “Exhibit
   D.”
   16. After watching the scenes in the movies where the word Cohiba is spoken and
   Cohiba cigars are shown, I reviewed transcripts and screen shots of the relevant
   scenes from the movies, along with the movie scene, to ensure they were accurate.
   Attached as “Exhibit E” are screen shots and transcripts of these three movies. In
   some cases the subtitles from the DVD are also shown on the screen shot.
   17. I watched scenes from two television shows namely the pilot episode from the
   first season of “Sex and the City” via a DVD copy of that episode, and the episode
   from “The Simpsons” entitled “That 90’s Show” from the 19th season of “The
   Simpsons” via the internet at http://www.wtso.net/movie/338-
   1911_That_90039s_Show.html . A DVD copy of the first season of “Sex and the
   City” is attached as “Exhibit F.” A copy of a webpage from Fox Broadcasting
   Company showing the name of the episode, a recap of the episode, and the date it
   originally was broadcast on Fox is attached as “Exhibit G.” A copy of a screen shot,
   along with a transcript of the dialogue, from “That 90’s Show” where Homer
   Simpson is seen holding a cigar at about time he says “Cohiba me” is attached as
   “Exhibit H.” A copy of a screen shot from “Sex and the City” where Mr. Big
   mentions Cohiba cigars and smokes a Cohiba cigar, along with a transcript of the
   dialogue from this scene, is attached as “Exhibit I.” The subtitles from the “Sex and
   the City” DVD are visible on the screen shot.
   18. After watching the scene from “Sex and the City” and from “The Simpsons” I
   reviewed the screen shots and transcripts to ensure they were accurate.
   19. I watched a music video “Window Shopper” by 50 Cent via the website
   http://www.mtv.ca where I searched and found a copy of that video for viewing. A
   print out of the page where I viewed the video is attached as “Exhibit J” and a print
   out of the screen of the scene in the video where 50 Cent is given a Cohiba brand
   cigar by a man in a suit is attached as “Exhibit K.”
   20. I listened to 12 songs and, after I listened to the songs, I read lyrics for 9 of those
   songs along with listening to the song. I listened to “Jealousy” by Fat Joe, “Real
   Playa Like” by Fabolous, “Watch Me” by Jay-Z featuring Dr. Dre, “What Now” by
   John Cena and Tha Trademarc, “Rush” by Talib Kweli, “Hustler Musik” by Lil
   Wayne, “Santa’s Got a Brand New Bag” by SHeDAISY, “Leather So Soft” by
   Birdman and Lil Wayne, “Where’s Your Money” by Busta Rhymes & Ol’ Dirty
   Bastard, “Cohiba” by Mario Vazquez, “Cohiba Esplenditos” by Les Claypool and
   the Holy Mackerel and “Cohiba Noches” by David Lane Walsh. A CD copy the
   songs, along with a print out of the play list of those songs, is attached to my
   affidavit as “Exhibit L.”
   21. I read a copy of lyrics for all of the songs except “Cohiba.” “Cohiba
   Esplenditos.” and “Cohiba Noches.” and a copy of the unofficial lyrics from the
   internet that I read while listening to the songs is attached as “Exhibit M.”
   22. I referred to sections of the textbook “Consumer Behavior in Canada” written by
   myself, Michel Laroche, of Concordia University, and Thomas E. Muller of
   McMaster University, and reviewing various other teaching materials that I have
   accumulated over my years as a professor and researcher.
   23. I also had COHIBA brand cigars, bearing Corporacion Habanos S.A.’s Cohiba
   trademark, in the “Siglo VI” size in “tubos” (tubes) available to me while preparing
   this opinion. One of these cigars, in its “tubo” is attached as “Exhibit N” to my
   affidavit.

Summary of My Opinion
   24. There is a quotation, attributed to Sigmund Freud that “sometimes a cigar is just
   a cigar.” In this case, a cigar is certainly not just a cigar. It is my professional
   opinion that when the word COHIBA appears in pop culture references, including
   those that I have reviewed (listed above), that this is a deliberate action by the maker
   of that work to use the brand image and personality of the iconic COHIBA brand to
   benefit, via classical conditioning, the message in that work. When an iconic brand,
   such as COHIBA, intentionally appears in a work, such as a movie, television show,
   music video, or song, this is a reflection of the personality and fame of the brand. It
   is my professional opinion that the COHIBA trademark, owned by Corporacion
   Habanos S.A., has become famous in North America, and specifically in Canada.
   25. It is my professional opinion that the Cohiba brand personality has been
   cultivated and nurtured over time – very successfully.

   26. In order to explain my opinion, I will delve into some of the fundamental
   marketing concepts that it is based upon.



BACKGROUND - Brands and Trademarks

   27. A “brand” is essentially the sum of the experiences and associations linked with
   a product, a service, a person or another entity, such as a corporation.

   28. From the perspective of a typical company, a brand serves as a powerful tool of
   communication.

   29. The psychological aspect of a brand is often referred to as the “brand image”
   and is a symbolic creation in people’s minds of all of the associations, and
   expectations related to that brand. Brand image is deliberately created and nurtured
   and is an essential part of the company’s “total” total offering.

   30. A “brand name” is the language element of a brand, either as spoken or written,
   associated with a service, product, person or another entity. Brand name is also
   deliberately created and nurtured by the brand’s owner and serves as an essential part
   of the “total” product offering.

   31. Successful brands are those that invoke a positive brand image in the minds of
   consumers –frequently, by referring only to the brand name, which is normally a
   trademark, as well.

   32. A brand is typically represented by, or associated with, a trademark or a trade
   name. If successful, trademarks and trade names serve the purpose of distinguishing
   products or services of one company from its competitor(s). In addition, trade names
   and trademarks also serve to “position” the associated product or service in the
   consumer’s mind in a specific and pre-determined manner.

   33. For example, when considering the brand APPLE, its image would commonly
   include such associations as imagination, design, innovation, creativity, modernity,
   quality and style. This image is part and parcel of the company’s attempt to market a
   unique and special product. The brand name is APPLE, and the company, Apple
   Inc., also conducts business under the trade name of APPLE. In addition, Apple Inc.
   owns the APPLE trademark.
   34. It is common for people who are not marketing or trademark professionals to use
   the words “brand” and “trademark” interchangeably, however in the field of
   marketing, this is not an accurate representation.

BACKGROUND - Brand Personality and Archetypes

   35. A “brand personality” is the specific mix of human traits that may be attributed
   to a particular brand. For example, a brand, such as National Geographic could be
   described as having a “dignified, inspirational and authoritative” brand personality.
   Harley-Davidson could be described as having a “powerful, heroic, and confident”
   brand personality.

   36. Brand personalities can be analyzed and classified through the use of
   archetypes.

   37. Archetypes are personified symbols that allow the conscious mind to identify
   with, or access, subconscious desires, meanings and truths. Archetypes represent our
   collective consciousness, our common goals and fears - perpetuated through myths,
   stories, religious beliefs and folk lore.

   38. Archetypes are frequently used to instill meaningful “persona” into brands and
   are naturally genuine and authentic.

   39. An authentic brand is a powerful brand. Companies take great care to cultivate
   brand authenticity. In the current environment, for example, Starbucks and Second
   Cup may be viewed as brands that are “losing” their authenticity, while Levi’s,
   Apple, Ben and Jerry’s and Canada appear to be maintaining their brand
   authenticity.

   40. Karl Jung believed that people are shaped by the collective experience of past
   generations, that they are civilization’s collective memories. This collective
   consciousness is the central storehouse of memories inherited from previous
   generations.

   41. For example, Jung would argue that many people are afraid of the dark because
   their distant ancestors had good reason to fear the dark. The collective
   consciousness includes archetypes.

   42. Archetypes appear frequently in myths, stories, religion, the arts, and dreams.

   43. There are many common archetypes, such as the wise old man, the outlaw,
   mother earth, the trickster, the king, the magician, the hero, the devil and the serpent.

   44. Marketers make use of archetypes to evoke their related qualities in a brand
   personality. For example, in marketing men’s products, the image of the hero is
   used, such as the cowboy as the Marlboro man, or the traits of a hero are referenced
   through a sports celebrity. The mother earth archetype is often used in personal care
   products, or “natural” products.

   45. The use of archetypes is a mainstream marketing concept. In 2000, the Brand
   Asset Valuator (BAV) group of Young and Rubicam (one of the world’s largest
   marketing and communications companies) started to measure brand personalities
   using an archetypes model.

BACKGROUND - Marketing Segments

   46. In marketing, product markets are typically segmented into various segments
   using variable like lifestyles, geography, consumption patterns, and various
   demographics like people’s incomes, occupations, and area of residence.

   47. Typically, market segments have little to do with political borders. For example,
   the “North American” market is commonly defined to include the United States,
   Canada, Mexico and other smaller countries within the geographic region labeled
   “North America”. And within North America, and across the Western world, certain
   sub-cultures like the Goth are viewed as “cross-border.” And, sub-cultures like Hip-
   Hop and Rap can certainly be viewed as global as witnessed by the phenomenal
   success of 50-Cent and Jay-Z in places like India and Japan. Therefore, companies
   perusing the markets for music, fashion, taste, cosmetics and other goods and
   services view their markets in a manner that is not constrained by geographic or
   political considerations. Profitability of the segments is a key consideration.

BACKGROUND - Popular Culture

   48. Popular culture, commonly referred to as “pop culture” is the culture that is
   widespread within a population including the contemporary lifestyle, ideas, values,
   and themes that are well known and generally accepted via an informal consensus
   within the mainstream.

   49. Pop culture in North America is strongly influenced by the mass media.

   50. The epicenter of mass media in North America is in the United States.

   51. Pop culture originating from the United States, such as from “Hollywood”
   movies, television and cable networks, celebrities, and music groups (which are
   generally groups of companies that include music publishers, sound recording
   manufacturers, music distributors, and record labels) generally flows throughout
   North America in particular, and throughout the western world.

   52. The political border between Canada and the United States generally does not
   stop the free flow of pop culture from the United States into Canada, and for this
   reason many popular “American” brands also become popular “Canadian” brands.
BACKGROUND - Reference Groups

   53. There are various environmental influences on consumers. One that is relevant
   in this opinion is the concept of the reference group.

   54. A reference group is a group or person who is a reference, and an influence, for a
   consumer who is learning and forming values, beliefs, attitudes or modes of
   behavior. The reference group serves as a point of comparison, or reference.

   55. Common reference groups include a person’s immediate family, their peers
   (hence the common term “peer pressure”), friendship groups (such as service clubs,
   sports clubs, and religious groups), formal associations and organizations (such as
   professional associations), relatives, mentors, friends, opinion leaders (such as movie
   critics, wine columnists), and celebrities.

   56. Reference groups exert a powerful influence consumer’s buying behavior. It is
   for this reason that business entities spend massive amounts of money on product
   endorsements through entertainment personalities (like Elizabeth Taylor, Brad Pitt
   and Tiger Woods) as well as corporate creations – (like the Marlboro man, the
   Pillsbury Doughboy, Jolly Green Giant and the Michelin Man).

BACKGROUND - Classical Conditioning

   57. Classical conditioning is a type of learning. Essentially, when a known stimulus,
   that elicits a response, is coupled with a second stimulus, over time the second
   stimulus will elicit the same response.

   58. For example, a dog sees food (the unconditioned stimulus) and drools (the
   unconditioned response). If every time the dog sees the food it also hears a bell (a
   conditioned stimulus), it will eventually drool upon hearing the bell (a conditioned
   response). Marketing attempts to employ this technique of conditioning to sell
   goods and services.

   59. In a typical advertisement using classical conditioning the product or service to
   be sold, is repeatedly paired with something coveted or considered desirable by the
   target market. After repeated exposure to the message, the product itself elicits the
   same craving or desire as the coveted object.

   60. Classical conditioning is a fundamental means of giving distinction to
   undifferentiated products. For example, to make one beer stand out among many
   similar beers, classical conditioning is the standard approach used in advertising.
   Each beer has a strong persona that appeals to specific lifestyle segments of beer
   drinkers. And brands are part of a carefully orchestrated effort to create this unique
   persona.
BACKGROUND - Iconic Brands

   61. An iconic brand is not an ordinary brand. Iconic brands not only reflect a brand
   image, they also reflect something about society and about the person using the
   brand. The iconic brand makes a powerful statement.

   62. Iconic brands are brands that are so well known that they have become famous.
   They exude a personality that is universally recognized. Such brands are typically
   desired or coveted by many people.

   63. Iconic brands transcend beyond simply communicating about a product, service,
   or company to become part of the popular culture. Iconic brands often have deep
   social and cultural roots, and sometimes grow beyond cultural boundaries.

   64. Often, iconic brands successfully invoke archetypes in their brand personality.

   65. To an observer, the personality and image of an iconic brand reflects upon the
   personality and image of the person who associates with that brand.

   66. People who see another (unknown) person in association with an iconic brand
   generally form part of their impression of that person from the iconic brand(s). For
   example, people generally view the man driving the BMW car differently than the
   man driving a Honda car.

   67. Iconic brands can be recognized by their appearance in popular culture and by
   their public reference or display by celebrities, for example.

   68. When a brand reaches icon status, other people and companies, instead of only
   the owner of the brand, often attempt to reference the brand for their own benefit.

   69. Companies and people will often use the brand image and personality of an
   iconic brand to intentionally communicate something about their products or
   services or themselves.

   70. For example, the politician who eschews her pre-election campaign Starbucks
   coffee in favour of publicly drinking Tim Horton’s coffee is saying “I am reliable,
   sensible, and I am not a snob.” The hip hop artist who has taken to drinking Crystal
   champagne and is driven around in a Rolls Royce is saying “I am powerful, I have
   status, I am wealthy, and I have arrived.”

   71. The movie director, who shows the beautiful leading woman drinking Dom
   Pérignon in a restaurant scene, where all of the men are admiring her, is doing this
   intentionally to borrow meaning from this iconic brand image, such as exclusivity,
   high quality, high class, celebration, and luxury. The movie director wants the
   viewer to instantly understand that the men see this beautiful woman as a highly
   desired, unobtainable, high class woman who requires the finer things in life.
   72. The use of an iconic brand can elicit a conditioned response. For example,
   generally, when consumers hear the iconic brand Tiffany, they think such things as
   beauty, wealth, exclusivity, and love. Someone who wishes to elicit thoughts of
   beauty, wealth, exclusivity, and love need only to invoke the Tiffany brand name, or
   trademark.

   73. Pop culture references to brands demonstrate that the brand has become famous.

The COHIBA Brand, Brand Name and Trademark

   74. In all of the movies, television shows, music video, and songs that I reviewed for
   this opinion (that are listed above), the Cohiba brand was intentionally invoked
   either by saying the brand name/trademark “Cohiba,” and/or by showing the
   “Cohiba” brand name/trademark. It was clear in all of the references, except for the
   song “Cohiba Noches,” that Corporacion Habanos S.A.’s Cohiba brand cigars, and
   its Cohiba trademark, were being intentionally referenced.

   75. There were recurring themes throughout the movies, television shows, music
   video, and songs. Essentially the Cohiba brand was being evoked, via its brand
   name/trademark, to represent status, wealth, power, intrigue, luxury, and mystery
   and to reflect those qualities upon the characters of those movies, television shows,
   music video, and songs.

   76. It was clear from the use of the Cohiba brand in the pop culture references that I
   reviewed that the Cohiba brand is a luxury brand.

   77. The Cohiba brand and trademark have been used in association with images of
   status, wealth, power, intrigue, and mystery so often that these images can be evoked
   at will by showing or saying the Cohiba brand name/trademark.

   78. The Cohiba brand seems to evoke images of several powerful archetypes, such
   as the king, the warrior, and the hero. It has deep cultural and historical connections
   to the lore of the Cuban cigar trade, the Cuban revolution, Fidel Castro, and the
   country of Cuba. As such this brand resonates with authentic and powerful images
   of status, wealth, power, intrigue, and mystery.

Representative References to COHIBA

   79. Perhaps the most telling example, that really summarized the images that the
   Cohiba brand evokes was in the video, “Window Shopper” by 50 Cent. I observed
   scenes of Monaco, expensive shopping, lots of diamonds and beautiful women and
   the good life in general. There were clear references to a $1.3 million Maserati car, a
   $16 million yacht, a $400 hamburger and a $300 Cohiba cigar. The video clearly
   implies that the hip-hop artist had truly “arrived” and that Corporacion Habanos
   S.A.’s Cohiba cigar, along with the other images of wealth and opulence, are proof
    of the artist’s status. It is worth noting that the variety of cigar in the video is clearly
    that of Corporacion Habanos’ Cohiba brand.



Conclusion - Reflection of Fame and Reinforcement

    80. The references to the word Cohiba in North American popular culture means that
    Corporacion Habanos S.A.’s Cohiba brand and trademark have become famous in
    Canada. The Cohiba brand is an iconic brand and its use in popular culture reflects
    the fame of the brand and the trademark.

    81. References to the Cohiba brand and trademark in pop culture, in a manner
    consistent with its brand image, as in the pop culture samples listed above, also
    serves to reinforce the strength of the brand and to continue conditioning people to
    associate the images of status, wealth, power, intrigue, and mystery to the Cohiba
    brandname/trademark. This serves to maintain the Cohiba brand’s iconic status, and
    its fame.

    82. References to the Cohiba brandname/trademark by celebrities, such as Jay-Z, 50
    Cent, Don Cheadle, Lil Wayne, and the members of the country music band
    SHeDaisy, as in the examples of pop culture listed herein, as well as reflecting its
    fame and iconic status, serves to further reinforce the awareness and reputation of
    the brand and trademark as celebrities are known to be a powerful reference group
    that influences consumer behaviour.

    83. It would seem to me that Corporacion Habanos, like any other business entity
    has and continues to spend large amounts of money and energy into maintaining
    their brand personality and successful positioning in the global market place for
    cigars.


    84. It would also seem logical and consistent with common practice that
    Corporacion Habanos S.A. would defend its brand name Cohiba from attempts by
    other entities to unfairly benefit/profit by associating their product or service with
    the good name, personality and fame of Cohiba.

    85. In this case a cigar is not just a cigar. The Cohiba brand is an icon, and the
    trademark is famous in Canada.

    86. I make this affidavit for the purpose stated herein and for no other or improper
    purpose.

SWORN BEFORE ME at the City of                )
Ottawa, in Ontario,
                                              )
This 1st day of June, 2009.
                                )
_____________________________   )   ______________________________
A Commissioner of Oaths         )   Dr. GURPRIT S. KINDRA
                                )

				
DOCUMENT INFO