Alzheimer's Disease & Related Disorders Ass'n, Inc. v. Alzheimer's Found. of Am., Inc. (307 F. Supp. 3d 260, 2018)

ALISON J. NATHAN, District Judge:

In September 2017, the Court held a bench trial between two Alzheimer's charities-Counterclaim Plaintiff Alzheimer's Disease and Related Disorders Association (hereafter, "Alzheimer's Association" or the "Association" or "Counterclaim Plaintiff") and Counterclaim Defendant Alzheimer's Foundation of America (hereafter, "Alzheimer's Foundation" or "AFA" or "Counterclaim Defendant")-on certain Lanham Act claims. Specifically, the Association contends that AFA's purchase of Association trademarks as search engine keywords and use of the two-word name "Alzheimer's Foundation" constitute trademark infringement and false designation of origin under the Lanham Act.

For the following reasons, the Court finds that the Association failed to prove that AFA's actions were likely to cause consumer confusion and enters judgment for the Counterclaim Defendant.

I. Procedural History

The history of the facts and prior proceedings in this matter is too voluminous to warrant full description here. Prior decisions of Judge Sweet, from whom this case was reassigned to the undersigned on November 21, 2016, provide additional background. See Alzheimer's Found. of Am., Inc. v. Alzheimer's Disease & Related Disorders Ass'n, Inc., 796 F.Supp.2d 458 (S.D.N.Y. 2011) ; No. 10-CV-3314, Dkt. No. 170 ; Alzheimer's Found. of Am., Inc. v. Alzheimer's Disease & Related Disorders Ass'n, Inc., No. 10-CV-3314 (RWS), 2014 WL 4290455 (S.D.N.Y. Aug. 29, 2014) ; See Alzheimer's Found. of Am., Inc. v. Alzheimer's Disease & Related Disorders Ass'n, Inc., No. 10-CV-3314 (RWS), 2015 WL 4033019 (S.D.N.Y. June 29, 2015). For the purposes of this bench opinion, the Court offers the following summary.

In 2007, the two Alzheimer's charities began suing each other. The first suit, in Virginia state court, concerned which entity was entitled to a trust bequest when the trustee made the first check out to "Alzheimer's Foundation," but sent it to the Association. The state judge dismissed the suit in 2009.

In April 2010, AFA sued the Association in this Court related to other checks cashed by the Association but made payable to AFA. In June 2010, the Association countersued, alleging trademark infringement and related state and common-law claims. See No. 10-CV-5013, Dkt. No. 1. On May 25, 2011, Judge Sweet dismissed all of the claims brought by AFA and by the Association except for those under and related to the Lanham Act. Alzheimer's Found. of Am., Inc., 796 F.Supp.2d at 468. In 2014, Judge Sweet dismissed AFA's remaining claims. That left only the Lanham-related claims in the Association's countersuit for resolution. The Association amended their remaining counterclaims on September 13, 2013, and the Amended Counterclaims are operative here. See Amended Counterclaims ("Am. Count."), Dkt. No. 125.

In July 2014, the Association brought a motion for a preliminary injunction, see Dkt. Nos. 183, 185, seeking to enjoin AFA "from purchasing Association-owned trademark terms from any search engine provider and from utilizing the phrase 'Alzheimer's Foundation' ...in its advertising." See Alzheimer's Found., 2015 WL 4033019, at *1. Following a two-day hearing, on June 29, 2015, Judge Sweet denied the Association's motion for a preliminary injunction. See generally id. After performing much of the same analysis the Court undertakes in this post-trial opinion, Judge Sweet concluded that "[t]he Association has failed to clearly establish the three most important factors in the preliminary injunction analysis: a likelihood of success on the merits, the prospect of irreparable harm, and the balance of the hardships tipping in its favor." Id. at *14. While Judge Sweet acknowledged that "the Association makes strong points on several of the Polaroid factors," he found that "its case for confusion falls short of the 'clear or substantial likelihood of success' required for a preliminary injunction that would alter the status quo." Id. (quoting Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24-25 (2d Cir. 2004) ).

Following reassignment to the undersigned, the Court set a motions and trial schedule. AFA submitted motions to exclude the report and testimony of both of the Association's expert witnesses, see Dkt. Nos. 269-71, 287-89, as well as a motion in limine to exclude one of the Association's theories of damages. See Dkt. Nos. 293-95. The Court reserved judgment on the motions. See Dkt. No. 286; Transcript of July 26, 2017 Final Pretrial Conference.

The Court held a six-day bench trial beginning on September 6, 2017 in accordance with its Individual Practices in Civil Cases for non-jury proceedings. Prior to trial, the parties submitted declarations of direct and rebuttal testimony as well as copies of anticipated exhibits and deposition designations that they intended to use at trial. The parties also submitted proposed findings of fact and conclusions of law. At trial, the parties called only those witnesses whom they intended to cross-examine and read into the record deposition designations and counter-designations for all other witnesses. In all, the Court received direct testimony from 25 witnesses, 13 of whom also provided live testimony, and admitted roughly 280 exhibits from both parties. Following trial, the parties submitted post-trial memoranda of law and updated proposed findings of fact and conclusions of law that were fully submitted on October 25, 2017. The Court then heard closing arguments on December 5, 2017.

II. Findings of Fact

A. Counterclaim Plaintiff Alzheimer's Association and Its Marks

The Alzheimer's Association, formed in 1980, is the world's largest private non-profit funder of Alzheimer's research. FOF ¶¶ 1-2. Since 2005, Harry Johns has served as the Association's CEO. Ex. 256 ¶ 2. Based in Chicago, the Association is comprised of more than 80 local chapters across the nation providing services within each community. FOF ¶ 3. Until 2016, most of these chapters were independent, operating under contract with the Association; in late 2015 and early 2016, a number of the chapters merged into the Association, while a few others disaffiliated. See Tr. (Johns) 252:10-253:12; AFA FOF ¶ 6(viii)-(xi). In fiscal year 2016, the Association raised more than $160 million in contributions, an increase from the $87.9 million the Association reported in "total revenues, gains and other support" in fiscal year 2010. FOF ¶ 13, 25. In fiscal year 2016, the Association spent $133.6 million on program activities, including more than $44 million on public awareness and education. FOF ¶ 27. The Association had nearly 9 billion media impressions and more than 41 million website visits in fiscal year 2016. Ex. 256 ¶ 30.

Surveys show that the Association is somewhat well-known. The Association commissioned a firm named Copernicus to conduct consumer awareness surveys (the "Copernicus Surveys"). AFA FOF ¶ 65. Copernicus measured both unaided-that is, "top of mind"-and aided awareness of the Association among different demographic groups. AFA FOF ¶¶ 66, 69, 70. In 2015, when respondents in the general population were prompted for the first two "health charity organizations that support research, help provide and enhance care and support, build disease awareness and provide tips to reduce risks of different diseases" that come to mind, respondents were vastly more likely to name the American Cancer Society (46%), St. Jude Children's Research Hospital (28%), American Heart Association (19%), and Susan G. Komen for the Cure (10%), than they were to name the Alzheimer's Association (3%). See Ex. AF at ALZ0058612. When respondents were asked which organizations "involved in the fight against Alzheimer's disease" they have heard of-the Association registered 8-12% awareness throughout 2011-2015. AFA FOF ¶ 71. Amongst "Champions," a subpopulation comprised of the demographic groups that the Association targets with its advertising messages, unaided awareness of the Association among organizations "involved in the fight against Alzheimer's disease" has hovered between 10% and 20% between 2009 and 2015. See Ex. AF at ALZ0058614. The Copernicus Surveys show aided awareness of "Alzheimer's Association"-that is, where respondents are prompted with the specific name-at roughly 25-32% among the general population, and at 35-47% among "Champions" between 2011 and 2015. Id. at ALZ0058618. For AFA, those numbers were 15-19% and 25-32% respectively. Id. at ALZ0058619.

The Association owns a number of marks containing the term "Alzheimer's Association," including the standard character mark ALZFIEIMER'S ASSOCIATION®, U.S. Reg. No. 2,850,223 (the "'223 Mark"), which has been registered since June 8, 2004, but which has been in use since 1988. FOF ¶¶ 5-7. The Association also owns U.S. registrations for marks using the two-word name "Alzheimer's Association" along with other words or with graphical elements, as well as standard character marks for WALK TO END ALZHEIMER'S® and MEMORY WALK®. See FOF ¶¶ 8-9. Together, these marks are hereafter referred to as the "Association Marks," although the '223 Mark is most central to the present litigation. The walk-related marks refer to an event organized by the Association that raises awareness and funds for Alzheimer's care, support, and research; in 2016, nearly 500,000 participants took part in walks in 630 communities, raising more than $78.6 million. FOF ¶¶ 14-15. The Association maintains a website accessible at www.alz.org, on which it displays "alz.org" and "Alzheimer's Association" at the top of its landing page. AFA FOF ¶ 15. The Association's principal color is purple. AFA FOF ¶ 16.

The Association did not register, and has no rights to the terms "Alzheimer's" or "Association" standing alone. AFA FOF ¶¶ 82, 126.

B. Counterclaim Defendant Alzheimer's Foundation of America and its Marks

The Alzheimer's Foundation of America was founded in 2002 with the primary purpose of providing optimal care and services to individuals living with Alzheimer's disease and to their families and caregivers. AFA FOF ¶¶ 17-19. Since January 1, 2014, Charles J. Fuschillo, Jr. has served as AFA's President and CEO. Ex. DS ¶ 3. AFA has more than 2,600 member organizations throughout the country that collaborate on education, resources, best practices and advocacy to meet the needs of those with Alzheimer's and related illnesses and their families and caregivers. AFA FOF ¶ 20. AFA has awarded millions of dollars in grant funding to its member organizations for services such as respite care. AFA FOF ¶ 21. In 2010, AFA's "revenues, gains and other support" from "contributions and special events including telethons" was approximately $6.6 million. Ex. 118 at 59. AFA maintains a website at www.alzfdn.org, and principally uses the colors teal and white. AFA FOF ¶ 26.

AFA owns various composite and standard character trademarks. The organization's first registered mark-registered in 2006-is for "AFA Alzheimer's Foundation of America" with the organization's "heart in hands" logo, U.S. Reg. No. 3,179,067 (the '067 Mark), as shown below. Ex. AK.

In December 2009, AFA filed for the assumed or "doing business as" two-word name "Alzheimer's Foundation" in four jurisdictions. Exs. 29-31, 33. Before December 2009, AFA had not applied for any trademarks using the two-word name without "of America." FOF ¶¶ 41, 155. At that time, AFA also filed for a composite mark using the two-word moniker "Alzheimer's Foundation" and displaying its heart in hands logo. AFA now owns this composite mark, U.S. Reg. No. 3,948,014 (the '014 Mark), as shown below. Ex. AL.

AFA did not use the '014 Mark in commerce until October 2010. FOF ¶ 39.1. AFA disclaimed any exclusive right to the literal element of the '014 mark as well as all literal elements of the '067 composite mark. FOF ¶¶ 39, 154; Ex. AK.

Finally, and most crucially for the issues at bar, on July 3, 2014, AFA filed for a standard character mark for "Alzheimer's Foundation." FOF ¶ 208. On December 23, 2014, this mark was registered on the supplemental USPTO register as U.S. Reg. No. 4,661,324 (the '324 Mark). FOF ¶ 209;

Ex. AM. According to the registration, the first use in commerce of the two-word name dates to March 31, 2004. Ex. AM.

AFA claims to have identified itself by the two-word moniker "Alzheimer's Foundation" since its inception. See Tr. (Fuschillo) 47:9-48:1; Tr. (Hall) 555:9-14; Tr. (Steinberg) 564:9-12. Prior to 2009, AFA's uses of the two-word name were largely limited to the headlines of press releases, and to sponsored advertising online, although AFA did identify singular instances of use on a billboard in Times Square, in its Care Advantage magazine, and in a radio ad. Exs. 19, 97, BR-1-BR-4, CO, CP; Tr. (Fuschillo) 30:8-25, 34:16-20. AFA has also used the two-word name on its Twitter account, which is space limited. FOF ¶ 232. Throughout AFA's history, the most pervasive use of "Alzheimer's Foundation" without "of America" has come in its online advertising. AFA FOF ¶ 73.

The Association does not claim any rights to the term "Alzheimer's Foundation," and does not use the phrase to refer to itself in any of its ads nor on its website. AFA FOF ¶¶ 82-83.

C. Keyword Advertising and Competitor Campaigns

Search engines, such as Google and Bing, use algorithms to identify various web pages relevant to the search terms input by users. FOF ¶¶ 46, 48. Search engines list both "organic," or unpaid, and "sponsored," or paid, search results. FOF ¶ 47. The search engine results page displays sponsored ads first, followed by organic listings. AFA FOF ¶ 38. The term SEO, or "search engine optimization," describes techniques used to enhance a website's appearance in organic search results. FOF ¶ 49. Metatags, including keyword metatags, are tools used in SEO, although evidence suggests that Google abandoned using metatags in their search algorithm by 2009. Ex. DV ¶¶ 102; Tr. (Leone) 789:1-791:2. Metatags are contained in a website's coding and are generally not visible to users unless they use a function to view the web page code. Ex. 258 ¶ 8.

In marketing, the term "keywords" generally refers to search keywords, which are terms purchased by advertisers so that their ads will appear in sponsored results in response to certain searches. FOF ¶ 52. Google's advertising program is called "Google AdWords." Each time a sponsored ad appears on a results page, this counts as one impression. AFA FOF ¶ 37. Advertisers pay for their paid ads based on the number of times a user "clicks" on the ad and goes to the advertiser's website. AFA FOF ¶ 39. Google and Bing require that the advertiser's URL appears in the ad. AFA FOF ¶ 54. Paid ads are labeled as "ads" or "sponsored" in some manner on the search results page. AFA FOF ¶ 40.

Google and Bing conduct real-time auctions 24/7 in which advertisers or their agents bid on keywords that will result in having their online ads displayed on a search engine results page. AFA FOF ¶¶ 41-42. The bidding is not visible to the public, users do not know which keywords organizations have bid on, and the bidding is largely non-exclusive. AFA FOF ¶¶ 43-44. Google and Bing do not limit the number of advertisers that can bid on a keyword or the number of advertisers who may have their ads displayed in response to a search query. AFA FOF ¶ 51.

While Google and Bing each uses a proprietary algorithm to determine the order in which paid ads appear, generally, the higher the bid the more likely the bidder's online ad will appear at or near the top of the sponsored search engine results. AFA FOF ¶ 45; Ex. 258 ¶ 11. The proprietary algorithms are also reported to use relevancy in its calculations, the score for which may be improved by using the keywords entered by the user in the organization's paid ad or on its website. AFA FOF ¶¶ 46-47. SEM, or search engine marketing, refers to the process of buying keywords so that an advertiser's sponsored link appears prominently in response to particular searches. FOF ¶ 55.

Since prior to 2007, Google has not restricted the use of trademarks as keywords, even in cases in which it receives a complaint from the trademark holder. AFA FOF ¶ 48. Bing has a similar policy regarding trademarked keywords. See Ex. DV ¶ 43; Ex. DU ¶ 37. Google and Bing have never prevented AFA from purchasing Association Marks as keywords. AFA FOF ¶ 52. Moreover, advertisers often bid on and purchase competitors' trademarks as keywords. AFA FOF ¶ 55.

D. Parties' History of Online Advertising

Both AFA and the Association have used online marketing to attract a broader audience to their websites. AFA FOF ¶ 74. Part of AFA's objective in driving traffic to its website was to increase "conversions"-or online donations. See, e.g., Ex. 60. To that end, AFA retained consultants, including Correlative, to advise them on what keywords to purchase and to create the content of online ads. AFA FOF ¶ 78.

Since June 7, 2004, AFA has described itself in the header of online ads using the two-word name "Alzheimer's Foundation." AFA FOF ¶ 79. Ads using this two-word name resulted in over 30 million impressions between June 7, 2004 and the end of 2009. AFA FOF ¶ 80. AFA understood that Google limited the number of characters an advertiser could use in the title of its paid ad to 25 or 30. FOF ¶ 59. Evidence at trial did not conclusively establish Google's current policy regarding character limitations. See Tr. (Marquardt) 905:11-15. From 2010 to date, AFA has spent $300,000 to $500,000 annually to purchase keywords. AFA FOF ¶ 86.

From June 2004 to the present, AFA has also purchased Association Marks as keywords. FOF ¶¶ 68, 146. By late 2007, AFA was frequently purchasing "alzheimers association" and variants as search keywords. FOF ¶ 149. For part of this time-April 2012 to June 2014-AFA ran sponsored ads that used the word "Association" in the text. FOF ¶ 71. After correspondence from the Association's counsel, AFA discontinued the use of the word "Association" in the content of its ads, FOF ¶ 72, however AFA continues to purchase Association Marks as keywords and to advertise itself as "Alzheimer's Foundation" in responsive ads. FOF ¶¶ 73, 204.

The Association began its own keyword marketing program in April 2007. FOF ¶ 65. The Association spent approximately $150,000 annually on keyword advertising in 2015-16, but also utilized Google Grants for an additional $480,000 of keyword advertising. Tr. (Carson) 292:11-293:8. Initially, the Association purchased "Alzheimer's Foundation" as a keyword, but all foundation-related keywords were removed from the Association's SEM in August 2010. Exs. BU, CB. The Association did not believe it was acting improperly in purchasing foundation-related keywords. Tr. (Geiger) 874:25-875:18. The Association has never purchased as an SEM keyword the search term "Alzheimer's Foundation of America." FOF ¶¶ 245, 247. In August 2016, AFA's trademark counsel wrote to the Association to complain that Alzheimer's Association's Northern California and Northern Nevada chapter had purchased "Alzheimer's Foundation" as a keyword and displayed resulting advertising text with "Alzheimer's Foundation" in the title. Ex. 15. The chapter had recently merged with the Alzheimer's Association, FOF ¶ 237, and upon receipt of the letter, the chapter discontinued purchase of the keyword. FOF ¶ 240.

Presently, one of the at-issue ads run by AFA might show "Alzheimer's Foundation" in the ad title, in standard typeface without any graphic element, followed by the associated website URL and a brief description or tagline. For example, as can be seen below, a Google search of "alzheimer's association" from June 2014 shows AFA's ad as the top result, with the main header as "Alzheimer's Foundation-alzfdn.org" followed by a yellow marker reading "ad," the URL "www.alzfdn.org" and a tagline of "An Association of Care and Support. Reach Out to Us for Help...." See Ex. 71. The advertisement also contains links to pages within AFA's website for those looking to "Make a Donation," to learn "About AFA," or to "Reach Out to Us for Help." Id. The second and only other ad result is from the Association. Their header reads "alz.org-Alzheimer's Association," is also followed by the yellow "ad" marker and the URL for their donation page, "www.alz.org/donate." Id. The Association's tagline was "Honor a Loved One with a Tribute Donation-Support Research & Care" and included links to subtopics on their website. Exhibit 71 is reproduced here:

Other trial exhibits showing Google search results for "alzheimer's association" might have the ads in a different order, or might show different text used by each organization, but consumers are presented with the same basic context shown above. See, e.g., Exs. 90, 161, 212; see also Ex. 97 (listing the various headers and textual elements of AFA's advertisements). The parties introduced other examples in which AFA used "Alzheimer's Foundation" in its ad text. See, e.g., Exs. 148-58, 245.

Purchasing keywords such as "Alzheimer's Association" was part of the AFA's so-called competitors campaign. Ex. 49. In October 2011, Chris Leone, AFA's SEO consultant, recommended increasing the daily budget for the competitor's campaign, and AFA agreed. Exs. 50, 51. At times, the keyword "Alzheimer's Association" received more clicks on AFA's sponsored ad than those received from its own brand. FOF ¶ 174. In early 2012, Mr. Leone reported that campaigns targeting AFA's competitors performed the best. Exs. 54, 55. The competitors campaign comprised roughly 40% of AFA's keyword marketing budget. Ex. 60 at AFA0021419. AFA also worked with a vendor named Vizions on an SEO plan involving keywords such as "alzheimers association," Exs. 42, 43, but there is no specific evidence in the record that AFA adopted Vizions' recommendations.

AFA rejected recommendations from Mr. Leone to include Association Marks in the content of AFA's online ads or website. Ex. DU ¶¶ 68-74; Tr. (Leone) 775:14-778:17; Tr. (Steinberg) 568:24-570:5; Exs. 63, 96-98. However, as described above, AFA did run an ad with the text "An Association of Care and Support," Ex. 66, which AFA removed after receiving a complaint from the Association. Ex. H; Tr. (Foh) 345:20-346:16; Tr. (Johns) 147:17-150:3; Ex. DS ¶ 61. The ad used the words "Alzheimer's" and "Association" but they were not next to each other. Ex. DS ¶ 60; Tr. (Foh) 345:11-18; Tr. (Leone) 778:18-779:9.

At trial, Mr. Leone opined that the "common strategy" of competitor-targeted ads was effective here because "Alzheimer's Association is the larger organization" and "if someone is searching for Alzheimer's Association, which they are frequently, then we're providing a[n] ad as another option for them. It is the same thing that most competitors do." Tr. (Leone) 797:2-13. Mr. Leone did not recall AFA ever using the word "compare" in the content of its ads resulting from Association-related keywords. Tr. 791:18-21.

The Association also incorporates AFA's metatag coding into its arguments in this case. The Association claims that from early 2005 through spring 2008 and then again starting in mid-2011, AFA was coding its website with metatag keywords including Alzheimer's Association, Alzheimer's and Related Disorders Association, memory walk, and Maintain Your Brain-all terms used and trademarked by the Association. See Ex. 240B. Exhibit 240B, on which the Association relies in making this argument, was admitted at trial solely "for what it may permissibly be considered for." Tr. 988:3-5. AFA fairly notes that 240B does not show how or when AFA's website was coded and no witness was called to explain the meaning of 240B. Tr. 986:22-988:2. Regardless, the Court finds that AFA's metatag practices are largely immaterial to the present issue, as they have likely not been used by search engines since before 2009, and so have little effect on the ordinary prudent consumer. See Exs. CW; DV ¶¶ 99-102; Tr. (Leone) 789:1-791:2; see Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1146 n.3 (9th Cir. 2011) ("Modern search engines such as Google no longer use metatags. Instead they rely on their own algorithms to find websites."); Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 467 (E.D.N.Y. 2011) (citing 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 25:69 (4th ed. 2013) ).

In order to make an online donation to AFA, a consumer could not simply enter a keyword or click on an online ad, but would have to visit AFA's website. AFA FOF ¶ 109. If after looking at AFA's website, a computer user determines that AFA is not the entity to which she wants to donate, the user can click back to return to her original screen page. Ex. DV ¶ 79; DU ¶ 93. To continue on to the donation page, a user would have to click on "Donate" or "Support Us" within the AFA website. AFA FOF ¶ 112. On the donation page, there are many references to "AFA" or "Alzheimer's Foundation of America," and no references to the Association or use of any the Association Marks. AFA FOF ¶ 113. At no point while on the AFA website during the donation process would a consumer see any of the Association Marks. AFA FOF ¶ 115. A similar multi-step process would be required to make an online donation to the Association. AFA FOF ¶ 116.

E. Non-Study Based Evidence of Confusion

The Association presents various types of evidence of purported confusion. First, the Association cites evidence that AFA has previously acknowledged confusion and, in fact, was the first to complain of confusion. In 2004, AFA's CEO at the time drafted a letter to the Association's then-CEO stating "I was therefore quite surprised when a routine web search under 'alzheimers foundation' led me to [the Association's] site. 'Alzheimer's Foundation of America' is a registered service mark of our organization. It distresses me that supporters of our respective organizations may be confused when searching the internet." Ex. 20. No witness was called to explain the letter, which may not relate to sponsored ads, and thus may be irrelevant to the purported confusion at issue here. Additionally, in AFA's suit against the Association, AFA alleged that the Association's "unauthorized conversion of checks made payable to Alzheimer's Foundation, constitutes an unauthorized use of Alzheimer's Foundation's Marks and is likely to continue to cause Plaintiff damage by confusing the general public...." FOF ¶ 106.4 (quoting Ex. 36 ¶ 61). The confusion caused by check-related practices is also not at issue here. Finally, in 2014, AFA's Kristen Leesment wrote to CEO Charles Fuschillo that she was "surprised" by the results of a survey AFA was taking of online donors that showed many people saying they donated before or were "introduced to AFA through a fund raising event," and speculated that "several respondents may have us confused with the Association or with 'the cause.' " Ex. 70 at AFA0021358.

Second, the Association points to check-related evidence. In 2009, in connection with litigation in Virginia, AFA learned that the Association receives checks made out to "Alzheimer's Foundation" and that it cashes those checks. FOF ¶ 151. Between 2007 and 2012, Alzheimer's Association received more than 5,700 checks made payable to "Alzheimer's Foundation" or a variant totaling over $1.5 million. Ex. CI. The Association notes that it receives many more checks made out to "Alzheimer's Foundation," than to "AFA" or "Alzheimer's Foundation of America." FOF ¶¶ 111-12.2. AFA, in turn, received more than 5,000 checks between 2006 and June 2016 made payable to "Alzheimer's Association" or near variants. FOF ¶ 107. While AFA receives checks made payable to a number of erroneous names, the most common error is checks payable to Alzheimer's Association. FOF ¶ 108. AFA's documents suggest that a large percentage of AFA's online donors are first-time donors, and that the average online donation, as well as check donation, is under $100.

See Ex. 60 at AFA0021415; FOF ¶¶ 262-63.

The parties have substantial disagreements about the value of this evidence with respect to the quantity of confusion and with respect to any causal links between the mislabeled checks and AFA's actions.

AFA claims that the number of checks received by the Association from January 2009 to January 2012 that were payable to AFA was only 0.1% of the total number of checks received, and 0.252% of the total value of checks received, but the Association disputes these figures as misleading. AFA FOF ¶ 154. The Association concedes that "the checks so received were a small percentage of the total number and value of checks received during the periods identified." Id. Similarly, Mr. Fuschillo opined that the number of checks AFA received annually that were made out to Alzheimer's Association was "de minimis," but could not identify how many total checks AFA received annually or the number made payable to the Association, and had done no personal review of these records. Tr. 63:9-74:15. Consequently, his opinion carries little weight.

In one instance, on July 30, 2014, the Association's cashiering department brought Christine Foh, the Association's general counsel, checks made payable to the Association and an obituary indicating donations were to be sent to the Association that were received alongside a printout of AFA's internet donation form. FOF ¶ 115. The Association followed upon the issue, with Ms. Foh calling a donor listed on the AFA form. FOF ¶ 116-25. The donor confirmed that the donation was intended for the Association. FOF ¶ 126. When asked why she had submitted the AFA form, the donor claimed that she had typed the Alzheimer's Association name into her web browser and clicked on the first entry that came up to download the form for donations and that she was unaware that the form she downloaded was for AFA or that she was on the AFA website. FOF ¶¶ 127-28. Aside from this one instance, the Association did not provide further evidence-anecdotal or otherwise-that directly confirmed that AFA's practices in purchasing Association Marks as keywords or in using the two-word name "Alzheimer's Foundation" caused the check-related confusion nor did the Association provide evidence that confirmed donors' intent one way or another. Moreover, no witness testified about other donors or potential donors contacting one organization looking to donate to the other, apart from people asking about the difference between the Association and AFA. See Tr. (McCullough) 585:2-6; Tr. (Geiger) 857:12-20; Tr. (Steinberg) 573:1-574:20. Third parties have also testified that they were not aware of or did not remember instances of confusion between the Association and AFA. AFA FOF ¶¶ 140-41.

Third, the Association points to an assortment of purported incidents of actual confusion, none of which have a clear link to any of AFA's allegedly infringing actions. For example, the parties engaged in a legal dispute concerning the estate of Sandra Lynch in which Ms. Lynch's will left a bequest to "Alzheimer's Foundation, Pennsylvania Chapter" even though the Association had a Pennsylvania chapter and AFA did not. FOF ¶¶ 129-32. Nonetheless, no evidence was adduced that Ms. Lynch's confusion was born from any of AFA's behaviors at issue here. See Ex. 11. Additionally, the Association presented evidence of NBC's Today show running a quotation the Association has provided alongside AFA's logo. FOF ¶ 134; Ex. 13. However, the logo mistakenly used by NBC was the '067 Mark with the words "of America," and is not at issue in this litigation. The Association also submitted a video clip from Celebrity Family Feud in which the host suggested the show was raising money for "Alzheimer's Foundation," when it was actually raising money for the Association. FOF ¶ 133; Ex. 12. Again, no evidence was presented that explained the reason for the mistake, let alone evidence connecting it to AFA's actions.

F. Dr. Van Liere's Studies

In addition to the evidence presented above, the Association also presented the survey evidence and opinion testimony of Dr. Kent Van Liere, Ph.D., Vice President at NERA Economic Consulting. FOF ¶ 135; Ex. 262. Over the course of 30 years, Dr. Van Liere has designed and analyzed hundreds of surveys focused on marketing related issues, including likelihood of confusion surveys, and his testimony has been admitted by a variety of courts. FOF ¶ 136.

Van Liere and his firm conducted two studies, both of which were the subject of a Daubert motion brought by AFA to exclude Van Liere's testimony. AFA did not challenge Dr. Van Liere's credentials as an expert. Instead, AFA hired its own expert, Hal Poret, to review and provide opinions regarding Van Liere's. surveys and conclusions. AFA FOF ¶ 170; Ex. DX; Ex. DY. Mr. Poret did not conduct his own survey. The Court denied AFA's Daubert motion at the end of Dr. Van Liere's examination, Tr. 740:6-10, and again at the close of trial, deciding instead to "[take] into account all of the record evidence." See Tr. 996:24-997:2.

1) Study 1

In his first study, Dr. Van Liere conducted a lineup, or "Squirt" style study meant to gauge the likelihood of confusion between the standard character marks "Alzheimer's Association" and "Alzheimer's Foundation." FOF ¶ 139. Study 1 operated as follows: Survey respondents were shown the Alzheimer's Association standard character mark. Then, after a "distractor" question, they were shown either a list of names of charitable organizations that included "Alzheimer's Foundation" (test condition), or a list of names of charitable organizations that included "Alzheimer's Trust" (control condition). Ex. 262 ¶ 15. Respondents were then asked questions meant to measure whether they believed the Alzheimer's Foundation or Alzheimer's Trust was the same as, or affiliated with, the first organization they were shown-namely, "Alzheimer's Association." Id. ¶ 16; see Ex. 191 (screen prints of Study 1). In the test condition, 50% of respondents believed that Alzheimer's Foundation was the same as, or affiliated with, Alzheimer's Association. Ex. 262 ¶ 23. In the control condition, only 16% believed so about Alzheimer's Trust. Id. As a result, Study 1 was said to demonstrate 34% net confusion. Id. Based on this result, Dr. Van Liere opined that "AFA's use of the name 'Alzheimer's Foundation' is likely to confuse a substantial proportion of consumers in the relevant population into believing that 'Alzheimer's Foundation' is the same as, or is affiliated with Alzheimer's Association." Ex. 262 ¶ 33; FOF ¶ 138.

Through Mr. Poret's testimony, AFA makes three criticisms of Study 1. First, it alleges that Van Liere failed to use the most relevant universe of consumers. Ex. DX ¶¶ 77-104. Van Liere determined that the relevant universe for testing should be people who either donated in the recent past or were likely to donate in the near future to "charitable organizations focused on Alzheimer's disease." Ex. 262 ¶ 10; Tr. (Van Liere) 641:7-12. To qualify for the study, prospective participants could have either answered that they had donated to an Alzheimer's organization within the past 12 months or that they would consider donating to an Alzheimer's organization within the next 12 months. AFA FOF ¶ 214. The screening data for Study 1 showed that at least 85% of the respondents for the Study 1 qualified on the basis of a potential future donation, and not on the basis of any past donation. AFA FOF ¶ 215. Moreover, roughly 65% of respondents in Study 1 said they would consider donating to at least three of the four types of charitable organizations about which they were questioned (the others being breast cancer, animal rescue, and homelessness). AFA FOF ¶ 217; Ex. DX ¶¶ 80, 91. Mr. Poret concluded that "[t]here is simply nothing in the data that suggests that most respondents are anything more than members of the general public who might theoretically consider donating to any of a number of charities." Ex. DX ¶ 102.

While Poret's criticism is well-taken, the Court sees no substantial error in the definition of the survey universe. Relevant consumers who would search for Alzheimer's Association on the internet would not only include those who have made donations in the past year. And while it is likely that respondents were inflating their willingness to give in the near future, it would be manifest error to exclude those who happened to also be considering a donation to a homelessness charity, for example. Finally, a stricter screen of prospective participants may not have substantially altered the results given the relatively low awareness of either charity.

Second, AFA argues that Study 1 fails to replicate marketplace conditions. Study 1 showed respondents the bare words "Alzheimer's Association" and "Alzheimer's Foundation," with both phrases in plain, black and white, and bolded text. AFA FOF ¶ 173. AFA argues that in the real world, consumers would see color, stylization, and additional content that surrounds and defines those terms, and so Van Liere's word association bears no relationship to marketplace conditions. See Ex. DX ¶¶ 110-126; Dkt. No. 287 at 18. The Association responds that since the two marks would appear in close proximity, in large, plain text, and without any accompanying logos or colors in the online search context most at issue, a study of this nature is appropriate to test for confusion between the marks. Ex. 262 ¶¶ 15, 18-19, Tr. (Van Liere) 664:24-665:7. Still, AFA notes that the marks are still seen with accompanying content or context, which is different for each mark, including different URLs and descriptive words. See Exs. AX, AY, AZ, BA, DL, DQ; Ex. DX ¶¶ 111-16.

While it is true that in instances with competing ad results, consumers would see both marks simultaneously, and surrounded by distinguishing content, the Court cannot conclude that Van Liere's word association test, however artificial, is unreliable or lacks probative value as a result. That the comparison is between the two marks outside the context relevant to this litigation does lessen its probative value in determining actual confusion, but it does not negate its value to the general analysis of whether AFA's actions are likely to confuse consumers.

AFA's third major criticism of Study 1 more clearly militates against placing great weight on the survey results. AFA questions Van Liere's choice of and process in choosing "Alzheimer's Trust" as a control, arguing that the choice artificially inflated the net confusion numbers. The Court agrees.

A control term should "share[ ] as many characteristics of the test stimulus as possible, with the key exception being the characteristics whose influence is being assessed." AFA FOF ¶ 192. A control term that generates higher levels of confusion would yield lower net confusion when compared to the test stimulus-"Alzheimer's Foundation."

Dr. Van Liere spoke with his staff about what a proper control would be. AFA FOF ¶ 191. Ultimately, Dr. Van Liere selected "Alzheimer's Trust" as the control for the lineup survey. AFA FOF ¶ 193. NERA staff had "pre-tested" two controls, "Alzheimer's Charity" and "National Alzheimer's Foundation," which, by generating more confusion, would have yielded net confusion rates for Alzheimer's Foundation of 12% and 11% respectively, far lower than the 34% Van Liere computed using "Alzheimer's Trust." Ex. DX ¶¶ 44-57, 145, 148-49; Exs. DG, DI. Dr. Van Liere considered using "Alzheimer's Charity" as a control, but switched to using "Alzheimer's Trust." AFA FOF ¶ 185. Dr. Van Liere testified that he rejected "Alzheimer's Charity" because it "sounded like a product category rather than a single real entity." Ex. 262 ¶ 22.

Dr. Van Liere testified that his staff never disclosed the results of these pre-test surveys to him, even though the results were disclosed to the Association's attorneys. AFA FOF ¶ 184. He also claimed to be entirely ignorant about the methodology employed by NERA staff in conducting the pre-test studies. AFA FOF ¶ 183. At trial, the Court asked Dr. Van Liere: "Do you understand your ultimate product to ever have been influenced in any way by what's done in the pretest studies?" Dr. Van Liere answered: "That's a hard question to answer, the way you've asked it. Certainly I design the work. I do the work. I oversee the work. I say yes or no to how we're going to ultimately do my study. That's how I do it. I can't really kind of evaluate influences, either from other studies we've done in other matters or other studies that staff have worked on for other people. I wouldn't want to make a general statement about that, how that influence passes." Tr. 698:9-19. Based on the substance of his answers, and his demeanor on the witness stand, the Court did not find Dr. Van Liere candid on the subject of the influence of pretest surveys. While it is legitimate to run a pre-test or pilot study for the purposes of improving a study, no credible explanation was offered for the changes made between the pre-test survey and the reported survey, and this suggests a potentially improper purpose. See Louis Vuitton Malletier v. Dooney & Bourke, Inc., 340 F.Supp.2d 415, 450 n.196 (S.D.N.Y. 2004), vacated in part on other grounds, 454 F.3d 108 (2d Cir. 2006).

But even putting this issue aside, "Alzheimer's Trust" is a weak control term. Dr. Van Liere testified that he and his staff chose "Alzheimer's Trust" because they wanted a two-word combination that sounded like a real organization but that was not actually a real brand in the marketplace, and not for any reason related to the pre-test surveys. Tr. (Van Liere) 720:24-721:11. Having a two-word control term was important to filter out any inflation of confusion that might result if "Alzheimer's Foundation" were the only two-word name on a list being compared with the two-word mark "Alzheimer's Association." Tr. (Van Liere) 727:10-728:6. Nonetheless, the presence of the word "Trust" as a descriptor for a charity, is both more unique than "Foundation," and more easily distinguished from "Association." As AFA notes, "trust" is an ambiguous word that also denotes other meanings, such as "to have confidence in" or "estate." Tr. (Van Liere) 687:15-688:5; Ex. DX ¶¶ 129, 133-35. For example, "Alzheimer's Federation" is also a two-word name that sounds like a real organization but is not, and that could more clearly control for the confusion created by reasons other than Foundation-specific reasons. Dr. Van Liere could have also used "Alzheimer's Foundation of America" as a control. The Association's contention is that AFA's use of the two-word mark in particular causes consumer confusion, so what better way to test that proposition than to compare its use with that of AFA's full, and undisputedly non-infringing name?

While the Court recognizes that the perfect control may not exist, as a measure of consumer confusion between two marks, Study 1-a test of mere words, shown sequentially, and with the unique word "trust" in the control term-is not particularly persuasive, especially in light of evidence that other potential controls, including those comprised of three or five words ("National Foundation for Alzheimer's Research" and "Alzheimer's Awareness Foundation") and one that sounds artificially generic ("Alzheimer's Charity"), registered substantially higher levels of confusion. See Ex. DX ¶ 21; Ex. DG; Tr. (Van Liere) 688:6-689:2, 693:24-696:5.

2) Study 2

The second study Dr. Van Liere and his staff performed was designed to replicate the process consumers go through in searching "Alzheimer's Association" and viewing the results. The Association argues that its results show that consumers are both initially confused by the results, and that this initial interest confusion is not dispelled when they are taken to AFA's home page. Defendant and Counterclaim Plaintiff Alzheimer's Disease and Related Disorders Association, Inc.'s Post-Trial Memorandum of Law ("Post-Trial Br."), Dkt. No. 345, at 30.

In Study 2, respondents were asked to type "Alzheimer's Association" into a search box in either Bing or Google and then were either shown a page of results including AFA's disputed ads and other keyword ads (test condition), or a page of organic search results without ads (control condition). FOF ¶ 249. Respondents were asked to click on the link or links they thought would take them to the website of the organization for which they searched. Id. Those who clicked on AFA's ad were then shown AFA's web page and asked if they thought it was the web page of the organization for which they had searched. Id. If respondents did not select the "Alzheimer's Foundation" or control links, the process repeated, this time asking the respondents to click on the link or links, if any, that they believe would take them to the website of an organization affiliated with the organization they searched for. FOF ¶ 250.

In the test condition, 42% believed a sponsored ad for "Alzheimer's Foundation" was the same as or affiliated with the "Alzheimer's Association." Ex. 262 ¶¶ 3, 31, 34. In the control condition, only 22% expressed confusion, yielding a net rate of 20% about the sponsorship of the links. Id. Moreover, of the 42% who were confused in the test condition, 74% remained confused as to source or affiliation after viewing a screenshot of AFA's web page (or 31% of the total respondents in the test condition). Id. As a result, Dr. Van Liere expressed the opinion that AFA's keyword advertising campaign using Association Marks led to a likelihood of confusion at both the initial interest page and at the landing page. Id.

AFA lodges four main criticisms of Study 2. The first regards how Van Liere defined the survey population. As the Court noted above, although the population may not be a perfect reflection of those consumers who are likely to search for or donate to the Alzheimer's Association, neither is it substantially erroneous.

Second, AFA criticizes the internet search survey for failing to replicate market conditions. AFA argues that the survey did not ensure that respondents were aware of the Association when taking the survey. Rather, the study design assumes that participants asked to type in "Alzheimer's Association" know that it is a particular organization. Consumers cannot mistakenly associate the AFA ad or website with the Association if they were not aware of the Association's existence to begin with. Alzheimer's Foundation of America, Inc.'s Post-Trial Memorandum of Law ("AFA Post-Trial Br."), Dkt. No. 348, at 31-32; Ex. DX ¶¶ 171-76. To the extent that consumers in the real world are searching for "Alzheimer's Association" as a generic category, and do not have the Association in mind when searching, they cannot be confused by AFA's ad or webpage.

Upon the Court's evaluation of the language used in the study, Dr. Van Liere's asserted belief that "people understood that they were searching for a specific organization," is fair and accurate. Tr. (Van Liere) 705:7-706:2. Nonetheless, the fact remains that consumers entering those search words in the real world may not have that particular understanding. Thus, while this criticism does not undermine Study 2, it does lessen the results' applicability to the task at hand.

Third, AFA criticizes the test stimulus as biased. AFA notes that all respondents presented with the test stimulus were shown a search results page in which the first sponsored ad was that of AFA, and there was no sponsored ad for the Association. AFA FOF ¶ 204. In real life, the Association also bid on its own Marks as keywords, and often would have appeared in the sponsored ads section as well. See Exs. 71, 161. Additionally, the order of the ads would change based on the organizations' respective bids. AFA charges that choosing a test condition without the Association's own ad, and failing to rotate the test condition so that sometimes another organization's ad appeared first, created a bias in favor of choosing the AFA ad-the first one listed-as the organization they had searched for. Tr. (Van Liere) 710:9-711:22; Ex. DX ¶¶ 199-207, 224-225; Ex. 188 at 11; Ex. 90. The bias created by the order of options is well-established. See, e.g., Jon A. Krosnick & Duane F. Alwin, An Evaluation of a Cognitive Theory of Response-Order Effects in Survey Measurement, 51 Pub. Opinion Q. 2, 201-219 (Summer 1987); Dana R. Carney & Mahzarin R. Banaji, First Is Best, PLOS One (June 27, 2012). Further, the study's control, as discussed below, does not account for this bias.

However, while failure to rotate the ad results did create a bias that suggests the actual confusion percentage would be lower, Study 2 did use a real web page with real ads that did actually result from typing in "Alzheimer's Association" at one point in time. See Ex. 188 at 11; Ex. 90. Consequently, while the net confusion rate might be inflated based on the failure to rotate the order of the ad results, if the Court were to find a likelihood of confusion based on the one test stimulus used, it would constitute a Lanham Act violation just the same.

Fourth, and finally, AFA criticizes Study 2's control stimulus. Instead of using a control with sponsored ads altered to remove the alleged infringing elements-namely, by removing AFA's ad altogether or its use of the two-word "Alzheimer's Foundation"-Study 2 used the same Google or Bing search results with the sponsored ads entirely removed. AFA FOF ¶ 207; see Ex. 188 at 12. A control respondent was deemed "confused" if she clicked on a Wikipedia link or news link instead of on the link for the Association's webpage itself.

The Association points to Study 2 for support for its contention that the initial interest confusion Van Liere claims to have found was not dispelled when confused consumers were taken to AFA's home page. Ex. 262 ¶ 31. AFA argues that using a Wikipedia page or a news article as a control to measure noise is flawed because it would not control for the tendency of respondents "to answer that a webpage for an Alzheimer's organization is a web page for the term they searched for." Ex. DX ¶ 28; AFA Post-Trial Br. at 33. This criticism, while valid, fails to undermine the central finding of Van Liere's study; after clicking on the wrong link, the AFA landing page (with its logos, text, and unique color) does little to correct any preexisting confusion.

However, Study 2's control stimulus was flawed for AFA's second proffered reason. By failing to control for the presence of sponsored ads, Study 2 ends up inflating any net confusion because the first search result in the control is the Association's website, that is, the correct answer, while the first search result in the test condition is the allegedly infringing AFA advertisement. Ex. DX ¶¶ 224-36. A better control stimulus would have contained non-infringing sponsored ads at the top that, if clicked, counted towards the confusion rate for the control. Dr. Van Liere testified that a control should "share[ ] as many characteristics of the test stimulus as possible, with the key exception being the characteristics whose influence is being assessed." Tr. (Van Liere) 654:18-23. He defends his choice by broadly defining the "key elements at issue" as "the sponsored links," and stating that a proper control is identical to the test condition but for that issue. Ex. 262 ¶ 30; Tr. (Van Liere) 723:22-724:15. A more accurate description of what is "at issue" is the allegedly infringing AFA ad, and not sponsored ads in general. Accordingly, only the offending item should have been removed or replaced.

* * *

In sum, Study 1 was designed to measure whether use of the two-word mark "Alzheimer's Foundation" was likely to cause confusion and Study 2 was designed to test whether AFA's sponsored link advertisements on search engines when consumers search for the Association was likely to cause confusion. Ex. 262 ¶ 9. In light of the deficiencies discussed above, the Court cannot conclude that the results from the studies constitute credible evidence of consumer confusion. In particular, Van Liere's decision to use the controls of "Alzheimer's Trust" and a results page without sponsored ads in Studies 1 and 2 respectively undermines the persuasiveness of his results. Ultimately, while the Court denied Counterclaim Defendant's Daubert motion, the evidence in the record and revealed at trial strongly militates against placing much weight on the study evidence.

G. Evidence of Willful Action

The Association marshals many pieces of circumstantial evidence in an attempt to tell a story in which AFA acted willfully, or in bad faith, when adopting the two-word name "Alzheimer's Foundation" and when purchasing Association Marks as keywords.

First, the Association presents a timeline of events. On April 13, 2004, Eric Hall, the then-CEO of AFA, wrote Sheldon Goldberg, then-CEO of the Association, to complain about confusion that may result when a search for "alzheimers foundation" leads consumers to the Association's website. Ex. 20. Nonetheless, by June 2004, AFA was purchasing "Alzheimer's Association" as a keyword. Ex. 97. An email from an outside SEO consultant to Hall in December 2007 suggests that AFA was aware this was a trademarked phrase. Ex. 24.

In 2007, the parties engaged in litigation in Virginia state court concerning which organization was the intended beneficiary of a gift from a trust. FOF ¶ 33. In the litigation, AFA learned that the Association had been depositing checks it received made payable to "Alzheimer's Foundation." FOF ¶ 151; Ex. 176. Shortly after the end of the Virginia litigation in December 2009, AFA registered the two-word name "Alzheimer's Foundation" as an assumed name in New York, Texas, Washington, DC, and California. Exs. 29-31, 33. As outlined above, in April 2010 AFA sued the Association for endorsing and depositing checks made payable to AFA, Alzheimer's Foundation, and Alzheimer's Foundation of America, claiming unfair competition and trademark infringement. AFA FOF ¶ 119. AFA made certain statements in its filings suggesting that there was a likelihood of consumer confusion when the Association deposited checks made payable to "Alzheimer's Foundation." See FOF ¶ 106. Around this time, AFA also filed for the '014 Mark, the first mark incorporating the two-word name without "of America." FOF ¶ 153; Ex. 32. These filings were the first time AFA applied for any trademarks or registrations using "Alzheimer's Foundation." FOF ¶¶ 40-41. It was not until fall of 2010, six months after filing its lawsuit, that AFA made its first use in commerce of the '014 Mark. FOF ¶ 167.

The Association suggests that AFA took these actions and others to exploit consumer confusion they knew existed. As described at length above, AFA's SEO plan from 2010 onward included its so-called "competitors campaign," through which it purchased Association Marks as keyword. Exs. 49, 54, 55. AFA ran one ad with the word "association" in the text, although this was discontinued following complaint from the Association. FOF ¶ 72.

The Association emphasizes that AFA's patent counsel filed two false specimens of use as further evidence of AFA's bad faith in holding itself out as "Alzheimer's Foundation" in advertising despite evidence of confusion. In 2014, AFA filed for a standard character mark for "Alzheimer's Foundation" (the '324 Mark), which appears on the supplemental register. FOF ¶ 209; Ex. AM. In its application, AFA's patent counsel included as a specimen of use a page from its magazine in which the words "of America" had been obscured. Ex. 73 at 11-13. Kristen Traina, an associate working with Mark Ingber, AFA's trademark counsel, testified that she erroneously included this specimen and that she had highlighted "of America" with a yellow highlighter to mark it for exclusion. FOF ¶¶ 211-12. After the Association raised the issue of the false specimen, Ms. Traina filed press releases as substitute specimens of use, which were accepted by the USPTO. Tr. (Traina) 409:11-412:8, 416:21-417:11.

Then in March 2017, AFA filed a "section 8" declaration with the USPTO claiming ongoing use in commerce with respect to AFA's '014 composite mark. FOF ¶ 216. Again, AFA's trademark counsel filed one specimen of use in which "of America" was removed and that had not actually been used in commerce. Ex. 243. AFA filed an amendment after the Association raised the issue, and the USPTO accepted the amendment. Ex. 93; Tr. (Santana) 816:5-11, 818:10-23. Mark Ingber's associate, Emily Santana, testified that she had created a "mock up" of the AFA website to show AFA an example of the specimen they would need for filing and then mistakenly filed this mock up instead. FOF ¶¶ 218-19. However, none of the additional specimens of use in the amended Section 8 filing show the '014 Mark as distinct from the '067 Mark, which contains the words "of America." See Ex. 93; Tr. (Ingber) 838:16-20; FOF ¶ 227.

According to the Association, AFA had to create these false specimens of use because AFA almost never refers to itself by the two-word "Alzheimer's Foundation"

name except in the realm of contested keyword advertising. Yet, although the Section 8 filing contains the electronic signature of acting AFA CEO Charles Fuschillo, Mr. Ingber and Ms. Santana testified that neither Mr. Fuschillo nor Mr. Ingber had ever seen the false specimen of use. Tr. (Santana) 809:16-21; Tr. (Ingber) 828:22-830:10. Mr. Fuschillo had authorized the Ingber Law Firm to apply his signature to documents to be presented to the USPTO. Tr. (Fuschillo) 22:18-21. There was no evidence presented that AFA was aware of either of the false specimens of use.

H. Damages

Since the Court does not find for the Association on liability, there is no need to detail its theories of damages in any great length. Briefly, the Association offers three alternative theories of damages. Ex. 256 ¶¶ 42-48; Ex. 260.

The Association first presented an accounting expert, Marylee Robinson, CPA, who offered two calculations of damages. In Ms. Robinson's first scenario, she attempted to calculate revenues to AFA that were associated with its use of the name "Alzheimer's Foundation" in ads resulting from online searches by measuring all online revenues received within 30 days of the computer user seeing the phrase "Alzheimer's Foundation" in the heading of an online ad on a search engine results page. Ex. 260 ¶ 10; AFA FOF ¶ 249. Scenario 1 calculated damages from January 2010 through December 2016 to be $5,005,509. FOF ¶ 270.

In the second scenario, Robinson attempted to calculate revenues to AFA tied directly to its purchase of Association Marks and related terms as search keywords by measuring all online revenues received within 30 days after the computer user entered one of the Association Marks as a keyword. Ex. 260 ¶ 11; AFA FOF ¶ 250. Ms. Robinson's Scenario 2 calculated damages from January 2010 through December 2016 to be $1,220,264. FOF ¶ 271.

Robinson's damages calculations rest on a number of dubious assumptions. Ms. Robinson's calculations assume that 100% of the donors who entered one of the Association Marks as a keyword or that saw the two-word phrase were confused and would have donated to the Association but for the allegedly infringing behavior. Moreover, the donor is counted in both scenarios regardless of what else the donor sees online or offline or learns about AFA or the Association within the 30-day period; donors who may no longer be confused at the point of donation because their confusion was dispelled by the website are still included. Tr. (Robinson) 473:8-12, 475:6-19, 476:18-486:5.

The Association, through Harry Johns, its CEO, also offered a calculation focused on the increase in contributions to AFA from 2011 through 2016 as compared to a baseline amount established in 2006. Ex.