Using Consumer Research to Address Key Lanham Act Issues in Trademark Litigation

The Lanham Act, as codified in 15 U.S.C. §1125, is the statutory basis for most trademark claims. Many common issues in trademark law and other areas of civil litigation—e.g. dilution, trade dress infringement, false advertising, etc.—are addressed in the Lanham Act.

Because the Lanham Act primarily addresses the ways in which consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce, issues raised in the Lanham Act are particularly well-suited to testing through consumer research.

Consumer surveys provide empirical evidence to support or refute claims, helping to strengthen litigation strategies.

Common trademark claims under the Lanham Act that can be analyzed with a consumer research study include:

Trademark Infringement

Trademark infringement occurs when a mark is used in a way that violates the rights of a trademark owner, potentially misleading consumers or harming the mark’s distinctiveness or reputation. In litigation, claims focus on factors such as the similarity of the marks, the relatedness of the goods or services, and the intent of the alleged infringer. A well-designed consumer research study can provide empirical evidence on the issue of whether an alleged trademark infringement is having a real world impact on consumers.

False advertising occurs when businesses make misleading or untrue claims about their products or services, potentially deceiving consumers and harming competitors. False advertising claims focus on whether the statements are false, misleading, or have a material impact on purchasing decisions. Consumer research is critical in these cases, providing empirical data on how consumers interpret and react to advertising claims. Surveys can measure consumer perception, reliance on claims, and potential deception, offering reliable evidence to support or challenge false advertising allegations.

Trade dress infringement involves unauthorized use of the overall look and feel of a product or packaging, such as its design, shape, color, or layout, leading to consumer confusion. Claims focus on whether the trade dress is distinctive, non-functional, and associated with a single source. A consumer study on the issue of trade dress can determine whether consumers associate a particular package design with a specific brand. Surveys provide empirical evidence on confusion and distinctiveness to support legal arguments.

Dilution occurs when the distinctiveness or reputation of a famous trademark is weakened, even without consumer confusion or direct competition. Claims focus on blurring (weakening the mark’s identity) or tarnishment (harming its reputation). Consumer research is valuable in dilution cases, measuring how consumers perceive the mark’s distinctiveness or any negative associations. Surveys provide empirical evidence to demonstrate whether the alleged dilution has affected the trademark’s unique identity or public perception.

False designation of origin occurs when a product or service is falsely represented as originating from a particular source, misleading consumers about its origin, sponsorship, or approval. Claims focus on factors like the similarity of marks, packaging, or advertising that could confuse consumers. Consumer research plays a key role in these cases by assessing consumer perception and the likelihood of confusion regarding the product’s origin.

Cybersquatting involves registering, using, or selling a domain name that is identical or confusingly similar to a trademark with bad faith intent to profit. Claims under the Anticybersquatting Consumer Protection Act (ACPA) address whether the domain exploits the trademark’s goodwill. Consumer research can be used to assess whether the domain causes confusion or misleads consumers about the brand’s association.

Consumer research is the process of sampling from a large group of relevant consumers and asking them carefully constructed questions to elicit opinions about a certain topic or topics.

When designed and executed correctly, consumer research studies yield highly reliable data that is projectable to the studied population.

Do you have a case that involves issues raised in The Lanham Act?

Would your case benefit from knowing how consumers interpret or misinterpret names, symbols, and other marks?
Call us to find out how a consumer research study can strengthen your Lanham Act case.
Litigation Surveys & Survey Rebuttals to Help Drive Your Case Strategy Forward

Areas of Expertise

Likelihood of confusion

We use an experimental design (test vs. control) approach to deliver robust, statistically reliable evidence regarding likelihood of confusion.

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Strength of Mark

Survey evidence is a useful tool in proving (or disproving) the strength of a contested mark. Our tailored approach ensures that the most appropriate method is selected for your case.

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Secondary Meaning

Has your client’s mark acquired secondary meaning among consumers? Our survey evidence will provide the answer.

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Acquired distinctiveness

From product design to color, our survey evidence will help you determine how trade dress impacts consumers and your case.

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Lanham Act claims

We have extensive experience conducting surveys to test a wide variety of Lanham Act claims, including likelihood of confusion, secondary meaning, trade dress, and others.

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Consumer perception

Survey evidence can provide crucial information regarding how consumers perceive marks, product designs, colors, websites, and other stimuli.

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Consumer understanding

Our surveys provide thorough insights into how consumers process and understand marketing messages, labeling claims, disclaimers, and other communications.

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Rebuttal work

We have extensive experience rebutting surveys submitted by opposing experts covering a wide range of issues.

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