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I UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------•.----------X PHILIP MORRIS INCORPORATED, Plaintiff, Civil Action -against- File No. 74 Civ. 2895 CES R. J. REYNOLDS TOBACCO COMPANY & WILLIAM ESTY COMPANY, INC., Defendants. ---------------------------------------X DEPOSITION OF ROF3ERT A. FITZMAURICE, taken before Alice Pizzo, Notary Public of the State of New York, held at the offices of Philip Morris Incorporated, 100 Park Avenue, New York City, New York, on the 3rd day of February, 1975, at 2:00 p.m., pursuant to StipUlation. BORAK REPORTING SERVICE. P. C. CERTIFIED SHORTHAND REPORTERS 295 MADISON AVENUE NEW YORK. N. Y. 10017 12121 689•8080 m NIGHT PMONCS: 42121 475-1347 (516) 487•6474 r O ~ N O N

1 2 2 A P P E A R A N C E S: 3 4 MESSRS. CONBOY, HEWITT, O'BRIEN & BOARDMAN 5 Attorneys for Plaintiff 20 Exchange Place 6 BY: New York, New York 10005 ANTHONY L. FLETCHER, ESQ., and 7 TIMOTHY C. QUINN, JR., ESn. of Counsel 8 9 MESSRS. COOPER, DUNHAM, CLARK, GRIFFIN & MORAN 10 Attorneys for Defendants 30 Rockefeller Plaza 11 BY: New York, New York 10020 R. BRADLEE BOAL, ESQ. 12 of Counsel 13 14 000 15 16 17 IT IS HEREBY STIPULATED AND AGREED by 18 . and between the attorneys for the respective 19 parties hereto that filing, sealing and certi- 20 fication be and the same are hereby waived. 21 IT IS FURTHER STIPULATED AND AGREED 22 that all objections, except as to the form of 23 the question, shall be reserved to the time of the trial. (^ 24 ti 25 C 0 v e ~o

1 2 3 4 L. 5 6 IT IS FURTHER STIPULATED AND AGREED that the within examination may be subscribed and sworn to before any Notary Public with the same force and effect as though subscribed and sworn to before this Court. 7 000 8 9 R O B E R T A. F I T Z M A U R I C E, 10 having been first duly sworn by Alice Pizzo, 11 Notary Public of the State of New York, was 12 examined and testified as follows: 13 EXAMINATION BY 14 MR. BOAL: 15 Q Will you give us your full name and address. 16 A Robert A. Fitzmaurice, 140 East 28th Street, New 17 York, New York. 18 Q What is your title? 19 A Marlboro Brands Manager. 20 Q For how long have you been employed by Philip 21 Liorris? 22 A 23 24 Since May of 1972. Q Can you recite the various jobs you have had since you came with Philip Morris? 25 A From May of '72 through, I believe, April, '73, 3 ,. ,.;-,..~,~...

1 Fitzmaurice 4 2 brands manager on Marlboro; April, '73 through November 4 of '73, brands manager on Benson & Hedges and since No- vember, '73 to the present, brands manager on Marlboro. 5 Q Prior to May-, 1972 by whom were you employed? 6 A Leo Burnett Advertising in Chicago. 7 Q For how long a period•of time were you em- 8 ployed by Leo Burnett? 9 A I believe I.joined them in February of 1968 and was 10 with them through P•iay of ' 72. 11 Q Could you review the history of your experience 12 with Leo Burnett? What you did,'when, and so forth? 13 A I held one job and that was account executive on 14 Marlboro. 15 Q You were account executive at the time Marl- 16 boro Lights was adopted and introduced? - 17 A Yes. 18 Q I have here a copy of a document that bears 19 your name on it and I ask if you can identify this docu- 20 ment? 21 Yes, I can. 22 Q What is it? 23 A It's-a memo -- it's a covering memo written by me 24 to Robert A. Crimmin and it covers a memo written from 25 Todd Abrams to Roger Sherman, subject Philip Morris

Fitzmaurice 2 name usage for Marlboro Lights. 3 MR. QUINN: Are these the documents that 4 5 6 10 11 were marked Exhibit 16A and 1GB to the Benson deposition? MR. BOAL: Probably. Off the record. (Discussion off the record.) MR. BOAL: Let's assume it was 16A and 16B to the Benson deposition. If it turns out other- wise, we can agree to mark it with the appropriate number. 12 MR. QUINN: That's fine. 13 Q Did you authorize the study that was made by 14 Mr. Abrams or request it? 15 A I don't recall whether I did an internal request at 16 Leo Burnett. 17 Q You were with Leo Burnett at the time, 18 assume? 19 A No, I was with Philip Morris. This is August 18, 20 1972 is the date I have got on the covering memo. 21 2 23 . 24 in the memo from Mr. Abrams to Mr. Sherman? Would you repeat the question? (So read.) 25 A Are you asking the purpose of the memo from Mr.

Fitzmaurice 2 3 4 5 ~ 6 ~: . ~ ~ 7 ~:- 8 LF 9 10 ' . 11 12 13 14 15 16 17 e 18 L 19 20 h r people asked fo r ethe Lights or Marlboro Lights? 21 w 22 .a in e ques ion was w e er ey as e or it 23 24 25 Abrams? Q No, the purpose of the study. A According to the first sentencesis to answer the question as to how consumers ask for Marlboro Lights in retail outlets. Q Is your recollection consistent with the pur- pose as stated in the memo? A I don't really recall. Q Do you recall who initiated the request, if there was one, for this particular study? 6 A No, I don't. Q The first page of your memo, which is Exhibit 16A to the Benson deposition, is a statement, "If you feel that it warrants further investigation, let me know and we will have Burnett follow it up in more detail." Do you recall whether or not there was any request for further investigation? .A Not that I recall. Marlboro Lights or Lights and offhand, I can't think of any reason that we had instigated that piece of research. MR. BOAL: Read the question back. Q Was it of any importance to Philip Morris I th' k th t' h th th k d f

1 Fitzmaurice 7 2 (So read.) 3 Q 4 question. 5 A it was of no importance to Philip Morris whether people 6 were looking at research to determine how people asked 7 for the product. 8 Q Do I infer from your answer correctly that- 9 10 asked for Lights or Marlboro Lights? I guess your answer didn't quite meet the The answer is I can't think of any reason that we 11 A 12 .I am not saying it was of no importance. It was not of any importance to me at that time. 13 Q' At that time you were brands manager of Marl- 14 15 16 17 MR. QUINN: Off the record. (Discussion off the record.) Q I have here a c of what I will e resent to 18 opy r p 19 you are answers to interrogatories propounded.by the de- 20 fendants here and I would-ask you if you would read in- 21 22 23 24 25 boro? A That would be correct. terrogatories 3, 4, and 5? (Witness complies.) Are those answers correct? To the best of my knowledge, yes, they are. Did you furrtish the information upon which

1 Fitzmaurice 8 2 those answers were based? 3 4 A I believe I was involved in participating and gath- ering that information. 5 Q Would you read interrogatory no. 7 and the an- (Witness complies.) Q In the course of the deposition of Mr. Morgan. 11 12 13 14 15 16 17 18 swer to it? 9 it was identified as Exhibits 3A, B, and C, what was re- ferred to in that deposition as the first phase of Marl- boro Lights print.advertising. There was also identified as Exhibits 12A, B, C, and D some newspaper print adver- tising which, I believe, also was early newspaper adver- tising, introductory advertising, and as Exhibits 11A, B, and C a group of ads that were termed "a breed apart" which were, I believe, a second phase of Marl.boro-Lights adver- tising. There was also identified in the Adams' deposition 19 as Exhibit 8 a later phase of Marlboro Lights print ad- 20 vertising. That is the.type of advertising that has been 21 22 23 24 25 most recently believed, I believe; A That's correct. is that correct? Q Is my characterization of these ads correct. as well? A I think that's correct, yes. 0 0 N A ~ 0 4 O ~ ~~

I Fitzmaurice 9 My question to you is, is it possible for you 3 to ascertain the point in time when Philip Morris changed 4 from the "a-breed-apart" phase of advertising to the type of advertising represented by Adams' Exhibit 8. 6 10 11 12 13 MR. FLETCHER: You have been asking for this for sometime. We have been working on it. You keep coming up with overlapping dates or not over- lapping dates. We know in some cases the dates did overlap and we are still trying to give you an an- swer. I will ask Mr. Quinn tomorrow to look into the status of that project again. Q I have here what I would represent to you to ies of 14 advertisements that were placed in Life be co p 14 15 Magazine in 1972 and I will represent subject to error 16 if your records prove otherwise that that is all the ad- 17 vertising that was placed in Life Magazine in 19727 18 19 20 21 MR. FLETCHER: Were these from the national page of Life Magazine or from regional pages? MR. BOAL: The copies that Mr. Fitzmaurice is looking at were copied from the New York Public 22 Library's copy of Life Magazine. .. MR. FLETCHER: We are dealing either with 23 24 national or the New York Metropolitan regional 25 pages, whichever be the case. N A C O ~ O Oh

1 2 4 5 6 ? Fitzmaurice MR. BOAL: I believe so. MR. FLETCHER: You don't have the page num- bers, do you? 10 MR. BOAL: If they don't appear on the'copies, then I don't have them. MR. FLETCHER: Off the record. (Discussion off the record.) .Have you ever placed Marlboro Lights ads in 10 Life~Magazine on a regional basis? 11 12. I don't recall. Q Do you recognize each of these ads as having 13 been placed in Life Magazine? 14 15 16 17 I recognize each of these.ads but whether or not each one ran in Life, I couldn't absolutely tell without looking at a schedule. Q How difficult would it be to look at a sched- 18 ule? 19 A No problem. 20 21 22 23 24 25 How long would it take? If it's handy, 20 minutes. MR. BOAL: Off the record. (Discussion off the record.) MR. BOAL:_ I ask the reporter to mark this as Fitzmaurice Exhibits A-1 through 14 for identificatio:

1 Fitzmaurice 2 (Above described 14 advertisements marked 3 Fitzmaurice Exhibits A-1 through 14 for identifi- 4 cation, as of this date.) 5 MR. BOAL: Off the record. (Discussion off the record.) Q Referring to Exhibit A-1, was that run na- -8 tionally by Philip Morris? 9 A That was a split run with -- as indicated on this 10 schedule, anyway, a Parliament ad. What is a split run? That would mean that the Parliament ad was run in 13 one portion of the country and the Marlboro Lights ad 14 was run in another portion. 15 How about A-2? 16 That is national. 17 A-3? 18 A National. ~ 19 Q A-4? 20 National. A-5? -21 22 MR. BOAL: What is the date on that? 23 MR. FLETCHER: March 24th. 2A A' That iss referred to here as three horse cowboy so 25 I assume that's it; national. 0 N ~ C m O O

1 Fitzmaurice 12 2 Q A-6? 3 Q A-9? MR. FLETCHER: June 16th. 4 MR. FLETCHER: March 31st. ~ 5 A That is indicated on our records as April 7th, 6 national. 8 A 14 15 16 1? r, National. That is indicated on our records as May 19th, Q A-7? Date? MR. FLETCHER: April 28th. National. Q A-8? MR. FLETCHER: May 12th. national. 18 v A-10? 19 - MR. FLETCHER: July 28th. ~ ~ . . ~ MR. BOAL: The date? ~ - ~ 20 ti That is indicated on our records as August 4th, 21 national. 22 23 -A-11? MR. FLETCHER: August 25th. 2tational. : A-12? _ 25 x u+ 0 N %O

1 Q MR. FLETCHER: September 15th. A National. 4 Q A-14? 6 10 11 MR. FLETCHER: September 29th. National. Q A-14? MR. FLETCHER: November. 3, ' 72. National. Q Do your records indicate whether advertise- ments were placed in Life Magazine for Marlboro Lights 12 in addition to those that we have identified as A-1 13 13. through 14? In other words, did A-1 through 14 represent in Life Magazine in 16 MR. FLETCHER: Can you tell from these re- 17 cords? 14 all the Marlboro Lights advertising 15 1972? 18 A should be able to. I have a total of 15 inser- 19 tions. 20 MR. BOAL: Of 21 22 23 24 25 Fitzmaurice f the record. (Discussion.off the record.) Can you tell which is the missing one? I think we could probably figure it out. MR. BOAL: Off the record. (Discussion off the record.)

Fitzmaurice Q You initially indicated, there were 15 ads run in 4 1972? 14 ; Correct. s there an explanation as to why there appears 6 to be only 14 run in the New York edition? There is one additional split'run insertion which: 8 was the July 14th issue of Life and again it was split run with Parliament. Q It is probable that Parliament was the adver- tising placed in the New York area? I think that is probably the answer. Q Do you recall having executed an affidavit for submission in support of an application to register Marlboro Lights for cigarettes? Yes,. I do. Have you recently had occasion to reread that? .Yes, I have.. In that affidavit it is"stated that Marlboro 20 2 22 23 24 25- Lightss advertisements appeared in 13 issues of Life-in 1972 and I was wondering if there was an explanation why you said 13 rather than 14? A I suspect that the reason was that in going through my records I was looking for advertising that was specifi- cally directed to tlarlbdro Lights and not to either pro- 5026a oe''

Fitzmaurice 15 3 motional advertising which was the country store or line advertising, which was the final ad that makes up the 15 E 4 we have just gone over. ~ . ~- ~. Q Is it likely that probably what you did was ~' - v 6 you excluded the ad that has been identified as A-12 and A-14 and you probably included the ad that was split, half appearing, perhaps, in the west coast area and the other 11 12 13 14 15 17 18 Q ' The question I have with respect to interroga- tory no. 7-- it may well be that you cannot answer this but the question is really directed to the corporation. That is whether or not the advertising figures for 1972 included or didn't include the country store? Secondly, the question is in 1973 the total is given of the proportionate share of the line advertising -- I believe one quarter of the line advertising figure was the .19. figure used -- whether in '72 there was any line advertis- 20 ing that was used to make up the total that is given for Z-1 print advertising? 22 I cannot-answer those questions. It would mean go- 23 . ing back and analyzing the numbers. 4 MR. FLETCHER:- It is my understanding there 25 was no line or promotional advertising included . y N

I .Fitzmaurice in the '72 figures. If there had been, we would 4 5 6 10 11 12 13 14 .15 16 have designated it that way. Whether it happened with the people who compiled the numbers and gave them to us, I cannot say. MR. BOAL: I will accept your representation that they are not included. MR. FLETCHER: It is my understanding, and it 16 was my understanding at the timG that they were not. I think for present purposes.we can figure that they weren't.. Q At this point I would reask the question that you referred to earlier that you were working on and that is how much of the expenditures in '72 were for the first and second.phase advertising and conversely, how much was for the advertising that is of the type such as Exhibit .17. A-13, Marlboro Lights, "The spirit of Marlboro in a low 18 tar cigarette." 0 19 - 20 21 MR. FLETCHER: We are trying to get an an- swer. Off.the record. (Discussion off the record.) MR. BOAL: At this point I would like to mark as Exhibit B a file wrapper history of.the Marlboro Lights applica_tion, serial no. 401870. MR.'FLETCHER: Mr. Boal, I can't comment on

I 4 5 Fitzmaurice 17 the handwritten notations throughout the file, but otherwise it appears to be a file of the papers sub- mitted with the application. MR. BOAL: I will represent for the record that the copy that I will ask the reporter to mark as Fitzmaurice Exhibit B is a photocopy of what exists in the patent office. In any event there are not any notations placed by anybody -- - MR. FLETCHER: What you are trying to say is 13 14 15 16 17 18 that Reynolds didn't put them in there and I will stipulate that Philip Morris didn't put them in there and we really don't know who did. (File wrapper history of the Marlboro Lights application, serial no. 401870, marked Fitzmaurice Exhibit B for identification, as of this date.) Q Attached to a copy of a response to an office action, which response is dated January 30, 1973, there is 19 an affidavit of Robert A. Fitzmaurice and I would ask you 20 if that is the affidavit you executed or a copy of the 21 affidavit? 22 23 A It is. Did you read the affidavit before you signed

1 2 Q Fitzmaurice 18 Was the first commercial roll-out of the brand in the New England market area? 4 A 6 It was introduced in New England, correct. Q Rolled out into the other areas of the country; is that correct? the figures come out before they are incorporated into Referring to attachments A-1, A-2, and A-3 to 9 the affidavit, when was that point of sale material first I can't give you an exact date without going back 12 into the records, sometime after August of 1972 based on It refers to an FTC report of August, 1972? That's correct. Did it normally take a period of time after 17 20 21 advertising? That's correct. Yes. Is there any rule of thumb as to how long it .u$ually takes? There.is a required time limit and what that is off- 23 25. point of sale piece such as.that shown there, such as the

Fitzmaurice 2 one I have just handed to you? (Indicating.) 3 A The same basic design but there is a more recently 4 Q The structure of it is essentially the same? Yes. MR. BOAL: I would ask the reporter to mark (Above described document marked Fitzmaurice Exhibit C for identification, as of this date.) 11 Q I would ask you if you are familiar with the 12* point of sale piece that I have just handed to you? 13 A I recognize it but I am not familiar with when or 14 where it was used. . 15 16 17 (Discussion off the record.) Do you know whether or not that was the intro- 18 _ductory point of purchase piece that was distributed by 19 Philip Morris? 20 21' MR. BOAL: Off the record. MR. BOAL: I would ask the.reporter to mark. that as Exhibit D for identification.- It looks like it would have been one of the intro- 22 . 23' ductory pieces. Whether or not it was, I can't remember 24; that. 25 (Above described Socument marked Fitzmaurice Ex- produced piece of point of sale material.

..Fitzmaurice million were distributed; is that correct? I believe that is the figure, yes. hibit D for identification, as of this.date.) Q I have here a document that has previously 5 been identified as Morgan Exhibit 25A, B, and C and ask if you recognize that document? 6 A I do. Q What was that? 8 A That was a sampling card. In Paragraph 4. you state some figures with 18 respect to advertising expenditures on behalf of Marlboro 19 Lights. I ask.you whether or not those figures did or 20 didn't include the cost of the sampling program? 22 no. 7 help you in that respect? . 23 24 was identified as Morgan Exhibit 25A, B, and C? I assume that that reference is to the sampling pack that Q This is the sample packs of which about 12 Q In Paragraph 2 there is reference to 12 million sample packages of Marlboro Lights. Just for the record, That' s correct. I would assume that based on the answer to.interrog- s the 'two .figures mentioned in question. no. 4

<< . Fitzmaurice 3 4 5 6 don't include the,sampling. 4- With reference to Paragraph 5C of your affi- 21 davit which is submitted in support of the application for registration, serial no. 401870, there is reference to B-1, 2, and 3. I ask you to read Paragraph C and to look 7 at B-1, 2, and 3. (Witness complies.) Q In 1971 was any'advertising placed that is the 12 13 14 Referring to the second sentence of Paragraph C, Paragraph 5C of that affidavit, it says, "In 1971 these or other advertisements were run regionally in 35 states in Life,.Newsweek, Time, U. S. News World Reports, and 15 , . 16 Sports Illustrated." Is there any reason for using the 17 language "these or.other newspaper ads" when, in fact, there was no such advertising such as B-l, 2, or 3 placed 18 19 *in _1971? - 20 21 22 A It specifically says,"In 1971 these or other a vertisements were run regionally in 35 states." The rea- son these were attached 1 assume is because they were the most recent. 23 n any event, 13-i, 2, and 3 were not run in 24 O 00 ~ O

I 3 4 5 7 Fitzmaurice 22 That's correct. (~ With reference to Exhibit li-1 through A-14, I would ask youu how many of-those 14 advertisements are the same as B-1, B-2, and B-3? That's correct, the second half of 1972. Q , Was .-the advertising commitment to Marlboro Lights much heavier in the first part -of 1972 than the latter part of 1972, than the last half? I would have to look at the specific schedules and budget figures to determine that. ..Is there any doubt that they were heavier in In the first half than the second half?. .p is some doubt. With reference to Paragraph'5B of your affi- 20 21 -22 23. - 24 placed in newspapers and newspaper magazine inserts in davit I would say that 4 have that same graphic look. Q Those are the runs in the latter part of 1972? Without having that information in front of me, thc= the first two sentences deal with advertising plac; in 1971 in newspapers. ."iy question is, are there any examnles of that advertisino placed in newspapers-in 1971 at ta.ched to . the aff ida,vit? With reference to the advertisin~ that was So264 0819 .

Fitzmaurice 23 1971, did Morgan Exhibit 12, in fact, represent the kind 4 stats of what are obviously proofs indicates 1971. Do you recall any other type of advertisements 7 that was placed in newspapers in 1971? of newspaper ads that were placed in 1971? 8 A With Yeference to Paragraph 5B of your affi- 10 davit of January 30, 1973, the bottom half of the para- 11 graph refers to the advertisements placed in 1972. My 12' question is whether that reference to newspaper ads in 13• 1972 includes any of the advertising such as shown in 14 Morgan Exhibit 12, Morgan Exhibit 3, or Morgan Exhibit 11? 15 If so, I would ask you which ones did it include? 16 1 believe they do, although only one of the photo- Not offhand. I would assume it did include some of this advertis- 17 ing but without looking at a specific schedule, I couldn't. 18 tell you exactly which ones. Do you know what, if any, portion of the 1972 20 newspaper advertising was the kind that was attached to 19 21 -your affidavit-as B=1 and B-2? You are talking newspaper now? 23 Yes._ .These are all.magazine ads so it would be none of

1 3 4 A Fitzmaurice Were comparable ads placed in newspapers? 24 Again, without seeing the schedule I couldn't tell. Q Did you look at any schedule prior to executing 5 the affidavit? 6 A The schedules were reviewed, yes, sure. Do you recall whether or not you pointed out 8."to the person that drafted the affidavit that the exhibits 9 to the affidavit didn't include advertising of the type 10 that is shown in Morgan Exhibits 12, 11, and 3? 13 A 14 15 1 Q The affidavit didn't say that, did it? I didn't prepare the affidavit. I read it and a- 17 greed with it and signed it. 18 19 20 21 Without looking at monthly sales I couldn't tell you. For the total year sales of Marlboro Lights 22 " were up compared to '73 sales of Marlboro Lights by approrx Z 3 imately what amount? 24_ Did I point that out, is that the question? Yes. o, I didn't. Again, that was the most recent ad- .vertising we had run for Marlboro Lights. (Short recess.) How did Marlboro Lights sales thed second half of the year compare to the first half?

1 R I would ask you whether or not those figures 3 contained in Paragraph 47 of plaintiff's request to admit 4 5 Fitzmaurice 25 are accurate, are reasonably accurate? A To the best of my knowledge, they are. MR. FLETCHER: Mr. Boal, those were taken from the Maxwells. MR. BOAL: I am just asking him whether they are reasonably accurate. I think they are. 11 Q Referring to 48, do you know whether or not 12 they are reasonably accurate as far as they refer to 13 English Ovals? 14 A Would you repeat that question? 15 (So read.) 16 - I have no idea. You are asking whether the.English 17 Ovals figure is correct? 18 Yes. Are English Ovals a Philip Morris product? 20 . ' A I believe so. 21 I ask you whether or not you are familiar with 22 these documents?.(Iianding.) 23 4 A I am familiar with what they are, but I was only 0 ' N

Fitzmaurice Which one? 12 MR. FLETCH'ER: At the time? I don't recall. The only reason I can tell you I 10..ask you if there is anyone there from Leo Burnett.on that ll list? _ Referring to the fifth week of consumer study 9_ and the people that apparently received carbon copies, A Results of the sixth consumer study for Marlboro. saw that one is because I was carboned on it. 14 A No, with.the possible exception of Bob Crimmin but 15 I think he had probably joined Philip Morris by then. 16 Q Referring to the summary of awareness, it's table one to the fifth consumer survey, did that table .18 mean anything toyou? Did it mean anything at all to you? Do those 21 numbers.-- did the table have any meaning to you as the Basically it summarizes awareness, trial and.usage

I 4 Right. Q Boston, New Haven, Providence, and Portland. What does unaided awareness mean? ,5 A I would be a little hesitant to give you a definition 6 on that. 7 Q Fitzmaurice What did it mean to you? It means that it would be awareness generated with- out any assistance from the researcher. 11 .. y g. P p • 1Z MR. BOAL: I would ask the reporter to mark 16 4th to November 6, 1971 is a high or low figure? 17 aided awareness, 4 per cent, on study no. 5 of November. 21 cent, A 4 In other words, he wasn't shown any materials? That would be m understandin • not rom ted that fifth consumer study as Fitzmaurice Exhibit.E. (Above described document marked Fitzmaurice Exhibit E for identification, as of this date.) -I have no idea. is a high or low figure? No. Do you know whether or not that figure for un- don't. Q On,the first page of the study it indicates the total awareness, aided and unaided, as 37 per cent and on the same period of time New,Leaf had unaided

1 Fitzmaurice 2 awareness of 68 per cent. Do you know whether or not 33 that is a high figure? Q Do you have any idea what the unaided aware- Q` How abQut total awareness in the same text 4 A that is high or low. Which one? Q 68 per cent for New Leaf. 6 A That is with TV support. I can't tell you whether 12 as this? 13 A Total awareness, I think the figure is somewhere 14 over 40 per cent. 15 16 Q That is today? That is as of the last material I saw. I don't re- Within the last year. What is the significance of that total aware- s ness to you as a brand nianager? A It provides the brand'manager with an indication of consumer recognition of a particular brand. Q- Are these studies the best measure you have

You have got brand awareness which is what we are tallcin~; here. You have got advertising ai•rareness 'which is 10 another source. Beyond that, is really it, at least 11 the tools that I am familiar with. 12 Are you aware of any study indicating the ad- 13 vertising awareness for Marlboro Lights? 14 Offhand, specifically, no. 15 Q, You recall none or you don;t recall any? 16 I can't think of one offhand, specifically. 17 MR. BOAL: Off the record. .18 (Discussion off the record.) 19 MR. BOAL: You referred to a specific study -20 that you had seen within the last year. Iwrould 21. ask ,you-to identify that and I request Philip Morris 22 to produce it. 23. , .14R. FLETCHER: Mr. Boal, if we could identify 24 it, we would. With respectt to your request for 4A 25 nroduction,.that.will be taken under advisement. N OA ls O 00 N O~

, t %.. Fitzmaurice 2 3 4 5 14 1971. 7 9 10 12 i 13 15 16 17 18 19 20 21 22 23 24 lie normally consider all such market research to be of a trade secret, confidential nature. MR. BOAL: In this connection you have pro- duced the six consumer surveys that were run in • 30 MR. FLETCHER: Certainly, without any intentior, to waive whatever privilege there may have been, but I point out that*1971 is a bit stale by now. MR. BOAL: It may or may not be in terms of the factual matter contained in them. MR. FLETCHER: I will simply have to take it under advisement. If we can locate them, I will then discuss the matter with the appropriate people here at Philip Morris and see what their feelings about making this a matter of public record are. They-generally know what is available to the public and what is not in this business. I think their position is anything that is generally known and would not be of some.competitive advantage to some- body else, they are privileged to disclose. MR. BOAL: Off the record. (Discussion off the record.) Q What has basically been your function with respect to Marlboro Lights since you have been brand o 5 • N

F I Fitzmaurice 31 manager here? 3. A Insofar as I am brand manager on Marlboro, it is 4 basically coordination of marketing activities on Marlboro 5 with specific responsibility for advertising, sales pro- 6 motion. 7 Q Does sales promotion include point of sale as 8 well as print advertising and so forth? 9 A Yes. 10 11 12 Is the reason that you are not familiar with Fitzmaurice Exhibit D for identification that it, perhaps,. antedates the time when you were here as a brand manager 13 at Marlboro Lights? 14 15 16 17 , Could very well be. Prior to May of 1972 what were your specific responsibilities with respect to Marlboro Lights? Again, it was in the context of being responsible 18 for coordinating advertising and sales promotion activities 19 on Marlboro. 20 21 22 23 24 25 Q In that capacity you don't recall whether or not you saw the Fitzmaurice Exhibit D for identification? A I recall having seen it, yes. Beyond that I have no recollection of its use. Q Did you have any responsibility for preparing the copy for the introductory advertisements for Marlboro

I Fitzmaurice 32 Lights? 4 Q Whose responsibility was that? 5 A The responsibility for preparing the copy was in the 3 A No. 6 hands of the creative group. 7 Q Norman riuse? 8 A Norman Muse, right. MR. BOAL: I don't have additional questions, I I but depending on whether you are going to produce that consumer recognition awareness piece -- well, 12 I will have some questions because it depends on 13 whether or not you produce that piece that has been 10 14 15 16- ' 17 18 19 20 21 22 23 24 25 6 ~... ,~.,.,... ~,...,. ~.~.-.,...... ? a08 9 referred to. The witness's recollection -- as I understand the record, the witness didn't specifically recall any consumer awareness or advertising awareness studies done on Marlboro Lights other than the one that he has seen within the last year and those that .we discu'ssed today that had been produced. If he. does after we leave recall another study. I would ask for that, too, or at least identification of it. MR. FLETCHER: Let's ask the witness. Mr. Fitzmaurice,-doyouu'recall any other.consumer ad- vertising awareness studies relating to Marlboro SOZ

Fitzmaurice 3 4 33 Lights other than those which were mentioned today? THE WITNESS: I don't recall any. MR. BOAL: Depending what is in that study when it is produced, I am going to have.questions. Also, I may have some questions with respect to the breakdown of advertising when and if we get the fig- 8 ures. 10 11 - 12 13 18 -19 20 21 22 23 24 25 So with that understanding, I don't really have anything else. Even if you don't produce them -- produce that study, I will have some questions in that area. Off the record. (Discussion off the record.) MR. FLETCHER: On the understanding that any further deposition of Mr. Fitzmaurice will be lim- ited solely to those areas that you just discussed, Mr. Boal, I have no objection. MR. BOAL: The areas of consumer recognition as indicated by the consumer awareness study and the questions relating to the.figures most of which the answers were today "I don't know" on specific figures as to when, how much was expended, at what t ime',- MR. FLETCHER: Correct.

1 2 3 4 ... 6 Fitzmaurice MR. BOAL: I don't expect him to recall those offhand. MR. FLETCHER: Correct. As to those two lim- ited areas, I will let him testify. (Whereupon, at 4:15 p.m., the deposition was adjourned.) i ~ ~ 10 Subscribed and sworn to ; ~ 11 before me this day ~ ± 12 of 1975. i 13 14 15 16 17 18 19 .21 22 23 24 25 -ROBERT A. FITZMAURICE 34

1 35 2 I N D E X WITNESS PAGE 4 Robert A. Fitzmaurice 3 5 E X H I B I T S a ~ ~ 10 i 11 i 12 13 .14 15 I 16 17 18 19 . 20 21 ~ 22 23 PLAINTIFF'S FOR IDENTIFICATION PAGE A Copies of 14 advertisements (1-14) copied from the New York Public Library's copy of Life Magazine, either national or regional • B 11 File wrapper history of the Marl- boro Lights application, serial. no. 401870 17 Point of sale piece as referred to in A-1, A-2, and A-3 19 Introductory point of purchase piece distributed by Philip Morris 19 Fifth consumer study 27 cn 24 . - . o, r 2 5 .~:~-.....~,_... 2 0 ~ w N

~ I 2 4 5 6 7 8 9 , 10 11 , 12 13 i 14 ~ t , ~ ~ 15 i , 16 f ~ 17 18 19. 20 21. 22 23 24 25 36 i:,^.tl XOT:;: ) ^11`TM, or ) a~ ) CnU1JTY OF '•IEW YOTT I~ ALICE PIZZO notary Public of the State of :7cw York, do ;icreby curtify that the foregoing deposition of _ ROBERT A. FITZr1AURICE was taken before me on the 3rd day of February. 1975 T he said witness was duly sworn before the .cormaencement of this testimony; that the said testimony was taken stcnographically by myself and then transcribed. The within transcript is a true record of the said deposition. I am not connected by blood or r,larriage with any of- t;ie saic: parties, nor interested directly or indirectly in the matter in controversy, nor am I in the emnloy ~ of any of the counsel. In witness whereof I. have hereunto set ny hand and seal of office at the County and State of New York, this ?3!t~-'daV of February ----1975.