Zippo Manufacturing Company v. Rogers Imports, Inc.

This case involves the attempt of a manufacturer of a popular cigarette lighter to keep others from imitating the lighter’s shape and appearance. Plaintiff Zippo Manufacturing Company (“Zippo”), a Pennsylvania corporation, alleges both trademark infringement and unfair competition on the part of defendant Rogers, Inc. 1 2**(“Rogers”), a New York corporation, by reason of Rogers’ sale of pocket lighters closely resembling Zippo’s. Plaintiff seeks injunctive relief, an accounting, and damages. Rogers counterclaims for a judgment declaring that plaintiff is unfairly competing with it and also seeks injunctive relief. Jurisdiction of the main action is based both on diversity of citizenship and. a claim under the trademark laws joined with a related claim of unfair competition. 2 Defendant also relies for *672 jurisdiction on the Declaratory Judgments Act, 28 U.S.C. §§ 2201-2202 (1952), as amended, 28 U.S.C. § 2201 (Supp. IY, 1957).

I

Plaintiff Zippo has been primarily engaged in the manufacture of pocket lighters since 1932, 3 and it has grown spectacularly over the years. Its annual national sales of these lighters grew from .about 27,000 units in 1934 to over 3,180,-000 in 1958, the year just prior to suit, and well over 4,000,000 in 1961. Today, Zippo produces more units than any other domestic lighter manufacturer. Its pocket lighters are made in two models, the “standard” and the “slim-lighter.” The latter accounts for slightly less than twenty-five per cent of the number of pocket lighters sold by Zippo.

Prior to World War II, Zippo sold only a standard model, the forerunner of its present standard lighter. This pre-war lighter was covered in part by a patent. 4 This model had a two-member outside case with a snugly fitting insert •containing the mechanical features of the lighter. The bottom member of the outside case had a matching flip-top member hinged to it; both were rectangular with square comers and straight lines. The user opened the top to activate the lighter by striking the flint wheel, and closed the top to snuff out the flame produced in the lighter’s “chimney.” To hold the flip-top in a fully opened or •closed position, the lighter incorporated a spring and cam arrangement which enabled the user to operate the top with •one hand. A most important feature of the lighter was an elliptical chimney or windscreen enclosing the wick, with round air holes punched into its sides in horizontal rows in a three-two-three formation. Attached to one side of the chimney were two square “ears” or lugs, which held the cam in position above a vertical coil spring located underneath the cam in a tube inside the lighter case. The flint wheel was pivotally mounted upon another set of lugs projecting from the other side of the chimney.

Until 1938, the appearance of the lighter was that shown in the illustrations of the Gimera patent. In that year, Zippo slightly altered the internal mechanical operation of its lighter and, for reasons of economy and efficiency, also changed the shape of its lighter in some respects. 5 No change was made in this standard model until 1942, when Zippo began to devote its entire output of lighters to the production of its “war” model. 6 This lighter, embodying the same mechanical features of the immediately pre-war standard model, was finished in a crackle paint. In June 1946, Zippo again returned to "the production of its peacetime standard model and has continued to manufacture it without major change to the present time. 7

A comparison of the present standard with the early Zippo standard model (1934-1938) indicates the following principal changes: the former model had severely square edges and corners and straight lines while the present lighter features slightly rounded edges and corners, a curvature in the shape of a slight arc in the top of the lighter, *673 and a recess in the bottom of the case; in the early model, the leaves of the hinge attaching the top and bottom members of the lighter case were on the outside of the case, but they are now located inside the case; the ears or lugs holding the cam were previously square in shape, but now they are rounded; and while the cam and spring arrangement embodied a vertical coil spring in the old model, a horizontal flat “leaf” spring is now used. 8

In June 1956, Zippo introduced its slim-lighter, a new model designed to appeal to women. 9 This model included the same mechanical features as the standard, but it was noticeably narrower and, therefore, less square and more rectangular in shape. Its dimensions were approximately 2 Ys" x 1%" x compared to 2%" x V/z" x Yz" for the standard. 10

Over the years, Zippo’s sales techniques have included extensive advertising, unconditional guarantees, and free repair service. Since 1949, the company has spent at least $500,000 each year in advertising its products. In 1958, it spent over $700,000, and in two of the next three years, over $1,000,000 per year. 11 Its advertising has appeared in magazines and periodicals of both national and specialized appeal. 12 Zippo’s advertisements of the standard model have featured, among other things, the word “windproof”; 13 the mark “Slim-lighter” has been emphasized in advertising its slim-lighter 14 Zippo’s unconditional guarantee and free repair service have also been highlighted. 15 Throughout its history, Zippo has consistently promised to repair any Zippo lighter free of charge, regardless of its age or condition, 16 and many purchasers have availed themselves of this service. For example, in 1961, almost 460,000 lighters were sent to the company for free repairs. 17

Zippo markets eighty to ninety per cent of its standard and slim-lighters in individual cardboard boxes. 18 These boxes are distinctively designed, and feature the name “Zippo.” 19 Its lighters are primarily sold to the individual consumer in retail marketing channels, although approximately thirty-eight per cent of Zippo lighters are sold to commercial organizations which use the lighters for advertising or public relations purposes. 20 Zippo also markets a very small percentage of its lighters through the use of display cards, which are changed to some extent each year. 21 Two of plaintiff’s display cards introduced in evidence featured the name *674 “Zippo” imposed in red letters upon a blue background. 22 On one, the word “Windproof” appears in white letters; on the other, the words “Slim Lighter” appear in white lettering.

Defendant Rogers or its predecessor has been in business since the first decade of this century. It offers nationally to the public a full line of smoking accessories, including pipes, tobacco pouches, and lighters. Rogers does not manufacture its lighters or pipes, but does produce its own tobacco pouches, which, according to the company’s president, account for seventy per cent of sales of pouches in the United States. 23 The company has grown consistently over the years. In 1932, its gross sales approximated $13,000; in 1958, $1,570,000; and since then, according to its president, gross sales have been in the area of $2,000,000 yearly. 24

Rogers, on a much more limited basis than Zippo, has advertised its products nationally in a variety of publications. 25 From 1932 to 1958, Rogers spent over $1,335,000 on advertising on a gross sales figure of approximately $18,160,000; in 1958, it spent about $72,000 for advertising on sales of approximately $1,570,-OOO. 26

In the fall of 1957, Rogers began to sell imported Japanese lighters 27 with full knowledge that they closely resembled the Zippo lighters. 28 Rogers has marketed these lighters with apparent success. In 1958, it sold between 240,000 and 360,000 lighters of this type; in 1959, approximately 720,000; in 1960, approximately 500,000; in 1961, approximately 380,000; and in 1962, approximately 360,000. 29 Dollar volume from sales of these lighters accounted for about fifteen to eighteen per cent of Rogers’ total gross sales in 1959; in 1962, it accounted for about seven per cent of gross sales. 30

A comparison of these imported “720” lighters 31 with the Zippo models reveals a striking similarity in shape and appearance. Thus, referring to Zippo and Rogers standard models, 32 the dimensions, the configuration, and the finish of the outside case of the lighters are almost the same; the windscreens, even with respect to the three-two-three arrangement of the airholes, are almost identical; the shape of the ears supporting the cam and flint wheel and the shape of the cam itself are the same; and the manner in which the lighters open and close is the same. In short, the Rogers standard is a Chinese copy of the Zippo, except for the inscriptions on the bottom of the lighters’ outside cases. Comparison of the Zippo and Rogers slim-light-' ers 33 compels the same conclusion.

Rogers markets these lighters exclusively by the use of display cards which carry the Rogers name. 34 For example, on a 1958 display card, 35 exhibiting the Rogers’ lighter resembling Zippo’s slim-lighter, the name “Rogers” appears in the upper left hand comer in large black logotype on a circular yellow background about 2% inches in diameter. The word “Slim” appears at the top of the card *675 in tall black letters, and underneath, the word “Lighters.” A picture of a “thin” man dressed in evening wear appears on the right hand side of the display card extending from the top to 'the bottom of the card. In the lower right hand corner, the words “Made in Japan” are printed in very small black letters; similarly, in the lower left hand corner, the name “Rogers Imports, Inc.” appears; and printed directly above and across the entire bottom of the card are the words “Windproof — Unconditionally Guaranteed.” The display card is approximately fifteen inches high and ten inches wide. 36 In similar display cards used in 1960, the word “Slim” was eliminated. 37 Defendant has offered to print on its display cards this legend: “This is not a Zippo; this is a Rogers lighter.” 38

The imported lighters in question were marked prominently with the name “Rogers” and the word “windproof” on the bottom of the lighter’s outside case. 39 Commencing in late 1959 or early 1960, the marking on the bottom of the outside case was changed to read:

“Rogers, Inc.

New York, N. Y.

Made in Japan” 40

After Rogers commenced marketing its allegedly offending lighters in 1957, Zip-po began receiving Rogers lighters from consumers who wished to have them repaired through Zippo’s free repair policy. At the time of trial, a total of 191 Rogers lighters had been received by Zippo in this manner. 41 Zippo’s policy was to return the lighter to the person from whom it was received, together with a form letter stating that the lighter was not a Zippo product, and, therefore, the company would not repair it. 42 Zippo then sent questionnaires to a substantial majority of those persons who had sent Rogers lighters to it. Seventy-five of such questionnaires were introduced into evidence at the trial. 43 The questionnaires were designed to find out in each case why the lighter was returned to Zippo even though it clearly bore the Rogers name. 44

Zippo contends that the Rogers “720” lighters are inferior to those it manufactures. To buttress this contention, reports of tests conducted by Zippo on Rogers “720” lighters were introduced at the trial. 45 On all the evidence, it appears that the Zippo lighters are superior to Rogers lighters, both as to material and workmanship. This is reflected in the retail price differential between the lighters. The retail price for the Rogers “720” model is $1.00; 46 the retail price for the standard Zippo in recent years has been $3.50 and up, and *676 for the Zippo slim-lighter $4.75 and up, depending on the model. 47

Plaintiff introduced into evidence lighters manufactured by other companies 48 to show that a lighter with the same windproof characteristics as a Zippo could be made without exactly simulating the Zippo appearance, e. g., the “Wind-lite,” manufactured by Ronson Metal Art Works, Inc. 49 This lighter differs from the Zippo in shape, as well as ornamentation, and has thin vertical slits rather than round holes in its windscreen. 50 Defendant introduced windproof lighters made by other manufacturers 51 simulating the appearance of the Zippo, e. g., the “Storm King,” 52 manufactured by Park-Sherman Co. Although Zippo has not sought injunctive relief against this company, 53 it has taken steps in the past to stop the importation of Japanese lighters imitating the shape and appearance of Zippo models. Thus, Zippo has filed complaints with various agencies in this country and in Japan, 54 and it has sent letters to ten different domestic concerns complaining about the importation problem and asking that it be terminated. 55 Zippo has also brought other suits in federal courts seeking injunctive relief. 56

II

Plaintiff’s unfair competition action will be considered first, since, as indicated below, its claim of trademark infringement does not require extended comment. There does not appear to be any conflict between the parties as to the source of the applicable law. Determination of that question, if necessary, would be difficult, since plausible arguments have been advanced to show that state law alone or federal law alone, or some amalgam of both, is the proper source of doctrine. 57 In this case, however, the parties have relied on both New York and federal cases, 58 and do not argue that looking to one source rather than the other would bring about a significant difference in the content of the applicable law. Plaintiff asserts that its case rests, inter alia, upon the establishment of secondary meaning for the shape and appearance of its lighter. 59 While there may be New York cases supporting the view that secondary meaning is not a prerequisite to establishing unfair competition in some situations, 60 on the facts of this case, they would not seem applicable. Therefore, it is not necessary to pursue the matter further. Rather than, in Judge Medina’s words, “unnecessarily rushing in where angels fear to tread” 61 to determine this complex question of the source of the applicable law, it will be assumed that “the indeterminate federal law” applies, with particular reference *677 to expressions of that law in decisions of the Court of Appeals for this Circuit. 62

What, then, is the content of the law? Plaintiff has quoted copiously 63 from the Restatement of Torts, which states:

Ҥ 741. Elements of Unprivileged Imitation.

“One who markets goods, the physical appearance of which is a copy or imitation of the physical appearance of the goods of which another is the initial distributor, markets them with an unprivileged imitation,' under the rules stated in § 711 [general rule of liability], if his goods are of the same class as those of the other and are sold in a market in which the other’s interest is protected, and

■*•*•****

“(b) the copied or imitated feature has acquired generally in the market a special significance identifying the other’s goods, and

“(i) the copy or imitation is likely to cause prospective purchasers to regard his goods as those of the other, and

“(ii) the copied or imitated feature is non-functional, or, if it is functional, he does not take reasonable steps to inform prospective purchasers that the goods which he markets are not those of the other.”

This is the view adopted in many cases in this Circuit. A classic statement appears in Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299, at p. 300 (2 Cir. 1917), where Judge Learned Hand said:

“The cases of so-called ‘nonfunctional’ unfair competition, starting with the ‘coffee mill case,’ Enterprise Mfg. Co. v. Landers, Frary & Clark, 131 Fed. 240, 65 C.C.A. 587, are only instances of the doctrine of ‘secondary’ meaning. All of them presuppose that the appearance of the article, like its descriptive title in true cases of ‘secondary’ meaning, has become associated in the public mind with the first comer as manufacturer or source, and, if a second comer imitates the article exactly, that the public will believe his goods have come from the first, and will buy, in part, at least, because of that deception. Therefore it is apparent that it is an absolute condition to any relief whatever that the plaintiff in such cases show that the appearance of his wares has in fact come to mean that some particular person — the plaintiff may not be individually known — makes them, and that the public cares who does make them, and not merely for their appearance and structure. It will not be enough only to show how pleasing they are, because all the features of beauty or utility which commend them to the public are by hypothesis already in the public domain. The defendant has as much right to copy the ‘nonfunctional’ features of the article as any others, so long as they have not become asso- *678 dated with the plaintiff as manufacturer or source. The critical question of fact at the outset always is whether the public is moved in any degree to buy the article because of its source and what are the features by which it distinguishes that source. Unless the plaintiff can answer this question he can take no step forward; no degree of imitation of details is actionable in its absence.”

In that case, the lower court had granted a preliminary injunction enjoining defendant from manufacturing and selling an adjustable wrench similar in shape and appearance to plaintiff’s. The Court of Appeals for this Circuit reversed on the ground that plaintiff had not proved that when defendant began to make its wrenches, “the general appearance of the plaintiff’s wrench had come to indicate to the public any one maker as its source, or that the wrench had been sold in any part because of its source, as distinct from its utility or neat appearance.” 64

More recently, the Court of Appeals has expressed similar views. In American-Marietta Co. v. Krigsman, 275 F.2d 287, at p. 289 (2 Cir. 1960), the Court, again through Judge Hand, said:

“The whole basis of the law of ‘unfair competition’ in this aspect is that no one shall sell his goods in such a way as to make it appear that they come from some other source. The simplest form of this is to use the name or trademark of another, but the law goes further than that. If the goods have certain features that have no significance as to the provenance of the goods, yet have come to have a ‘secondary meaning’ which may mislead buyers into supposing that they come from a source on which the buyers rely, those features may not be copied. That is the doctrine of ‘non-functional’ copying, and is limited to those features of the original goods that are not in any way essential to their use. If in addition to being ‘non-functional’ these features have indeed come to signify origin in the minds of buyers, a second comer in the field will be forbidden to incorporate those features into the design of his own wares; the chance that this will deflect buyers who would otherwise buy of the putative other source cancels the second comer’s privilege of reproducing the original, which he has in common with the public at large.”

In that case, the Court affirmed the denial of a preliminary injunction against the sale and manufacture of a sponge mop, on the ground that plaintiff had not shown that the copied features of the mop were the reason for alleged confusion of origin among purchasers.

In Hygienic Specialties Co. v. H. G. Salzman, Inc., 302 F.2d 614 (2 Cir. 1962), the Court of Appeals again similarly stated the applicable law of unfair competition. In that case, the District Court, 189 F.Supp. 790, had granted an injunction on the theory, inter alia, .that defendants had engaged in unfair competition by selling a soap dish similar in appearance to plaintiff’s soap dish. The Court of Appeals reversed, stating through Judge Kaufman, (302 F.2d at pp. 619-620):

“* * * [T]he courts have repeatedly held that the copying of an unpatented design does not in itself constitute unfair competition. Algren Watch Findings Co., Inc. v. Kalinsky, 197 F.2d 69, 70 (2nd Cir. 1952); General Time Instruments Corp. v. U. S. Time Corp., supra [2 Cir.], 165 F.2d [853] at p. 854.

*679 “On the other hand, competition must be ‘fair’ both to the consumer, and so far as possible, to the trade. Consumer protection has been limited (in this context) to the prevention of confusion, i. e., the customer should not be misled into purchasing an article from one producer in the belief that it was made by someone else or emanates from some other (but unidentified) source. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra, [2 Cir.] 271 F.2d [569] at p. 571. In order to recover on this theory, the plaintiff must show that a ‘special significance attaches in the public mind to the nonfunctional attributes of its wares’; or, in other words, that they have a ‘secondary meaning.’ Ibid.; American-Marietta Co. v. Krigsman, 275 F.2d 287, 289 (2nd Cir. 1960). To establish such secondary meaning in this case Hygienic must prove that (1) the soap dish design is a mark of distinction identifying its source, and, also that (2) purchasers are moved to buy the soap dish because of its source. Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 697; Lucien Lelong, Inc. v. Lander Co., Inc., 164 F.2d 395, 397 (2nd Cir. 1947). This it has not done. * * * Hygienic has not shown that a single consumer bought one of these soap dishes because of its source. On the contrary, we agree entirely with the trial judge that ‘it is unlikely’ that a buyer would ‘give any thought at all to the identity .of the producer. Manifestly, a purchaser of this simple and inexpensive household item * * * relies not on the reputation of the producer, but upon the apparent quality and eye appeal of the product itself.’ 189 F.Supp. 794. And as Judge Learned Hand stated almost a half a century ago, “it is an absolute condition- to any relief whatever’ on this theory ‘that the public cares who does make them, and not merely for their appearance and structure.’ Crescent Tool Co. v. Kilborn & Bishop Co., 247 F. 299, 300 (C.C.A.2, 1917); Chas. D. Brid-dell, Inc. v. Alglobe Trading Corp., supra, 2 Cir., 194 F.2d 416.”

Therefore, plaintiff can obtain relief only if it meets its burden of proving that:

(1) Defendant’s lighter copies plaintiff’s lighter;

(2) A copied feature has acquired a special significance in the market identifying plaintiff as the source of the lighter, and that purchasers are moved in any degree to buy the lighter because of its source (“secondary meaning”);

(3) Such copied feature in defendant’s lighter is likely to cause prospective purchasers to regard the lighter as coming from plaintiff;

(4) Such copied feature is nonfunctional. It should be noted, however, that even if the copied feature is functional, plaintiff may still be entitled to relief if defendant has not taken reasonable steps to set its lighter apart from plaintiff’s in the public mind. Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938); Vaughan Novelty Mfg. Co. v. G. G. Greene Mfg. Corp., 202 F.2d 172 (3 Cir.), cert. denied, 346 U.S. 820, 74 S.Ct. 34, 98 L.Ed. 346 (1953). In the Kellogg case, after reaching a conclusion that plaintiff could not prevent defendant from making its product (shredded wheat biscuit) in the same pillow shape used by plaintiff, the Supreme Court pointed out (305 U.S. at p. 120, 59 S.Ct. at p. 114) that “[f]airness requires that [defendant’s manufacture of the biscuit] be done in a manner which reasonably distinguishes its product from that of plaintiff.” See Shredded Wheat Co. v. Humphrey Cornell Co., 250 F. 960 (2 Cir. 1918) ; cf. Modern Aids, Inc. v. R. H. Macy & Co., 264 F.2d 93 (2 Cir. 1959).

The above analysis of the law of unfair competition is not meant to be exhaustive. Courts have also granted relief in unfair competition cases on the theory that other factors besides sec *680 ondary meaning are controlling, such as deceptive marketing practices, American Safety Table Co. v. Schreiber, supra note 61; intention to palm off goods as the product of another, Upjohn Co. v. Schwartz, 246 F.2d 254 (2 Cir. 1957); or “violation of plaintiff’s property rights,” International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918). 65 However, it is not necessary to consider the rationale of these and similar cases 66 because these factors are not involved here. Rogers is an established company attempting to develop its own name and reputation, and is not attempting to trade on the name of its competitor. Plaintiff has argued that Rogers has copied a number of features of plaintiff’s method of doing business. 67 However, the conduct complained of seems unobjectionable (e. g., offering a guarantee), unimportant, 68 or legally defensible. 69 Viewing defendant’s conduct as a whole, I find that it has not been guilty of intentionally deceptive marketing practices or any attempt to palm off its lighter as one manufactured by Zip-po. 70 On the other hand, it has clearly attempted to obtain the commercial benefit of marketing a lighter of a certain shape and appearance popularized by Zippo. Whether Zippo can prevent it from doing so is the question to be decided under the law set forth above.

Defendant argues, inter alia, that plaintiff must, in any event, prove actual deception or a clearly calculated plan to deceive in order to obtain relief. 72 This appears to be an inaccurate statement of the law and an inversion of the cases cited above at p. 680. Those cases support the proposition that intention to deceive or actual deception might alone justify relief even if secondary meaning were not present. They represent, if anything, a relaxation of the requirements for a plaintiff in an unfair competition action, and do not purport to require proof of a plan by defendant to deceive in every case. Defendant also claims that plaintiff has not proved secondary meaning or confusion of source and that the imitated features are, in any event, functional. These and other contentions of defendant will be referred to below.

Ill

Plaintiff has relied heavily on a consumer study 73 to prove the elements of its case. This study was prepared and conducted by the sampling and market research firm of W. R. Simmons & Associates Research, Inc. Mr. Simmons, the head of this firm, and Donald F. Bow-dren, the project supervisor, appeared as witnesses; both are qualified experts in the field of consumer surveys. 74 Mr. Bowdren testified that the purpose of the study was to determine whether the physical attributes of the Zippo standard and slim-lighters serve as indicators of the source of the lighters to potential cus *681 tomers and whether the similar physical attributes of the Rogers lighters cause public confusion. 75 The study or project consisted of three separate surveys. In Survey A, the respondents, or interviewees, were shown a Zippo standard lighter which had all the Zippo identification markings removed and were asked, among other things, what brand of lighter they thought it was and why. In Survey B, the same procedure was followed for the Zippo slim-lighter. In Survey C, respondents were shown a Rogers standard lighter that was being sold at the time of the survey, 76 with all of its identifying markings, and they were asked, among other things, what brand of lighter they thought it was and why.

Mr. Simmons’ testimony and the project report made clear the principles and procedures by which the surveys were conceived and conducted. 77 Testimony to this effect is important, because it is well settled that the weight to be given a survey, assuming it is admissible, depends on the procedures by which the survey was created and conducted. Rhodes Pharmacal Co. v. Federal Trade Comm., 208 F.2d 382, 387 (7 Cir. 1953), rev’d in part on other grounds, 348 U.S. 940, 75 S.Ct. 361, 99 L.Ed. 736 (1955); see United States v. E. I. Du Pont De Nemours & Co., 177 F.Supp. 1, 18 (N.D. Ill.1959), vacated in part on other grounds, 366 U.S. 316, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961). There was no overlapping of respondents in the three surveys so that no one respondent would be influenced in one survey by his answers to another survey. The developmental phase of the project involved preparation of questions that could be handled properly by an interviewer, correctly understood by respondents and easily answered by them. This required several drafts of questionnaires and some pretesting. The “universe” to be studied consisted of all smokers aged eighteen years and older residing in the continental United States, which the research project indicated was approximately 115,000,000 (“the smoking population”). All percentage results in the surveys represent projected percentages of the smoking population.

The three separate surveys were conducted across a national probability sample of smokers, with a sample size of approximately 500 for each survey. 78 The samples were chosen on the basis of data obtained from the Bureau of Census by a procedure which started with the selection of fifty-three localities (metropolitan areas and non-metropolitan counties), and proceeded to a selection of 100 clusters within each of these localities— each cluster consisting of about 150-250 dwelling units — and then to approximately 500 respondents within the clusters. The manner of arriving at these clusters and respondents within each cluster was described in detail. The entire procedure was designed to obtain a representative sample of all smoking adults in the country. The procedures used to avoid sampling error and errors arising from other sources, 79 the methods of processing, the instructions for the interviewers, and the approximate tolerance limits for a sample base of 500 were also described. 80 Two of the interviewers testified that they were experienced in interviewing, explained the manner in which the interviews were conducted, and stated that they did not *682 know the purpose of the surveys. 81 All of the original responses to the questions as reported by these interviewers were made available in court. 82

Plaintiff also called Dr. Robert C. Sor-ensen as an expert in the field of survey research. 83 Dr. Sorensen stated that the project was conducted objectively and scientifically. Defendant does not deny this generally, but points to specific procedures and questions as being improper and buttresses its arguments with the testimony of its own expert, Professor Charles Winick. 84

Defendant objects to the admission of the surveys into evidence. It first contends that the surveys are hearsay. 85 The weight of case authority, the consensus of legal writers, and reasoned policy considerations all indicate that the hearsay rule should not bar the admission of properly conducted public surveys. 86 Although courts were at first reluctant to accept survey evidence or to give it weight, 87 the more recent trend is clearly contrary. Surveys are now admitted over the hearsay objection on two technically distinct bases. Some cases hold that surveys are not hearsay at all; 88 other cases hold that surveys are hearsay but are admissible because they are within the recognized exception to the hearsay rule for statements of present state of mind, attitude, or belief. 89 Still other cases admit surveys without stating the ground on which they are admitted. 90

The cases holding that surveys are not hearsay do so on the basis that the surveys are not offered to prove the truth of what respondents said and, therefore, do not fall within the classic definition of hearsay. 91 This approach has been criticized because, it is said, the answers to questions in a survey designed to prove the existence of a specific idea in the public mind are offered to prove the truth of the matter contained in these answers. 92 Under this argument, when a respondent is asked to iden *683 tify the brand of an unmarked lighter, the answer of each respondent who thinks the lighter is a Zippo is regarded as if he said, “I believe that this unmarked lighter is a Zippo.” Since the matter to be proved in a secondary meaning case is respondent’s belief that the lighter shown him is a Zippo lighter, a respondent’s answer is hearsay in the classic sense. Others have criticized the non-hearsay characterization, regardless of whether surveys are oifered to prove the truth of what respondents said, because the answers in a survey depend for their probative value on the sincerity of respondents. 93 One of the purposes of the hearsay rule is to subject to cross-examination statements which depend on the declarant’s narrative sincerity. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948). The answer of a respondent that he thinks an unmarked lighter is a Zippo is relevant to the issue of secondary meaning only if, in fact, the respondent really does believe that the unmarked lighter is a Zippo. Under this view, therefore, answers in a survey should be regarded as hearsay.

Regardless of whether the surveys in this case could be admitted under the non-hearsay approach, they are admissible because the answers of respondents are expressions of presently existing state of mind, attitude, or belief. There is a recognized exception to the hearsay rule for such statements, and under it the statements are admissible to prove the truth of the matter contained therein. 94

Even if the surveys did not fit within this exception, well reasoned authority justifies their admission under the following approach: the determination that a statement is hearsay does not end the inquiry into admissibility; there must still be a further examination of the need for the statement at trial and the circumstantial guaranty of trustworthiness surrounding the making of the statement. 95 This approach has been used to justify the admissibility of a survey. 96 Necessity in this context requires a comparison of the probative value of the survey with the evidence, if any, which as a practical matter could be used if the survey were excluded. If the survey is more valuable, then necessity exists for the survey, i. e., it is the inabili