Trademark Surveys


adidas AG and adidas America, Inc. are world famous for manufacturing and selling apparel and other items worn by those engaged in sports and athletic activities, and as informal leisure clothing.   The items manufactured by adidas generally display one of its famous marks, one of which is known as the Trefoil logo which appears on adidas’ “Originals” line of apparel.

Herbalife International, Inc., a producer and distributor of nutrition, weight-loss, and skin care products, is one of the largest nutrition and health companies in the world.  Both in the U.S. and abroad, Herbalife promotes its brand name and products through sponsoring various sport teams and many athletic events and activities.  An example is the Los Angeles Galaxy, one of more than a dozen professional soccer teams playing in Major League Soccer (MLS), the North American soccer league.  As the team’s sponsor, both the Herbalife name and its Tri-Leaf logo — a registered trademark Herbalife adopted in or around 1980 — appeared emblazoned on the front of LA Galaxy jerseys between 2007 through 2010.

Adidas Herbalife TshirtThe LA Galaxy jerseys are manufactured by adidas so that, in addition to bearing the name Herbalife and its Tri-Leaf logo, the 2007 through 2010 jerseys also carried the name adidas along with the adidas “Performance” logo, the latter appearing near the neck collar and above the former.  adidas’ Performance logo bears no similarity to its Trefoil logo.

Claiming that the presence of Herbalife’s Tri-Leaf logo was likely to cause consumer confusion, adidas produced the 2011 LA Galaxy jersey bearing the name Herbalife, but without Herbalife’s Tri-Leaf logo.  adidas also filed suit[1] arguing that Herbalife’s Tri-Leaf logo was confusingly similar to adidas’ Trefoil logo so that, upon seeing the former appearing on any items of apparel or accessories (which included LA Galaxy jerseys but also all the other goods on which the Tri-Leaf logo appeared), potential consumers of adidas’ goods would likely be confused into believing either that Herbalife was the source of the apparel, or that adidas had some business relationship or connection with Herbalife, or authorized Herbalife to use the Tri-Leaf logo.

Foley & Lardner, counsel for Herbalife, commissioned Jacoby to design and conduct three surveys.  One tested LA Galaxy replica jerseys with prospective purchasers of these goods.  A second tested Herbalife’s Tri-Leaf Logo as it appeared on Herbalife sponsored merchandise used at track, cycling and other sporting events.  The third survey tested whether the Tri-Leaf logo appearing on merchandise sold or provided to Herbalife distributors likely to cause consumer confusion.  The three surveys found likely confusion rates below 3%.  Shortly after they were provided to counsel for adidas, adidas moved to dismiss with prejudice all its trademark claims and its claim for monetary damages.


“Jack did an excellent job in reviewing the relevant data, preparing and conducting bullet proof surveys and then presenting them in a fashion that clearly demonstrated that the claimed confusion between the two marks was non-existent.  Shortly after the surveys were submitted and prior to his deposition the trademark portion of the case was dismissed.  It was a pleasure to work with Jack as he is one of the most knowledgeable and responsive experts I have ever retained.”  – Jon M. Wilson, Partner, Foley& Lardner, LLP

[1] Adidas America, Inc. and Adidas AG v. Herbalife International, Inc. (D. OR, CV No. 09-661-M0).




Begun in the homes and garages of two multi-racial women who could not find satisfactory conditioners or shampoos for their naturally curly hair, “Mixed Chicks,” now a multi-million dollar corporation, designs, develops, manufactures and markets high-quality hair care products for curly hair, particularly the hair of multiracial or ‘mixed-race’ individuals.

Sally Beauty Supply is the largest retailer of professional beauty supplies in the world.  After Mixed Chicks began experiencing success in marketing their conditioners and shampoos, Sally Beauty began offering a line of conditioners and shampoos under the name Mixed Silk in similar appearing containers also targeted toward the multi-racial market.  Believing that the Mixed Silk mark and trade dress were likely to cause marketplace confusion, Mixed Chicks sued Sally Beauty.[1]

Haynes/Boone commissioned Jacoby to conduct a survey on behalf of three plaintiff and to critique the survey proffered by the defendant.  Mixed Chicks prevailed.


“Jack is an extremely knowledgeable expert and his credentials are unparalleled.  Jack did a fantastic job of designing a complicated consumer survey that was absolutely critical to our case.  Jack’s survey design and his ability to effectively communicate the findings of his survey to the jury helped produce a trial victory and a sizable damage award for our client.  Jack also effectively critiqued the opposing expert’s survey in a way that the jury could understand and found credible.  Our $8.1 million trademark jury verdict was one of the largest in the Central District (CA), and the largest verdict of any kind in that particular court in 2012.  Jack’s work and capable testimony were integral to getting that great verdict for our client.” – Kenneth Parker, Partner, Haynes/Boone, LLP.

[1] Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F.Supp.2d 1093, C.D.Cal., July 25, 2012 (NO. SACV 11-452 AG FMOX)