Consumer surveys are commonly used as evidence in trademark cases to establish consumer confusion and the likelihood of confusion between two similar marks. However, the admissibility of consumer surveys in trademark cases can be a complex issue that depends on various factors. Hiring highly qualified survey experts like Keegan & Donato Consulting will help protect your survey from criticism.
Consumer surveys can be a powerful tool in trademark litigation, but their admissibility depends on various factors. Courts typically consider these factors when determining the admissibility of consumer surveys in trademark cases:
- Relevance: The survey must be relevant to the issues in the case and must provide evidence that is helpful to the trier of fact.
- Methodology: The survey must be conducted using a reliable and valid methodology that is widely accepted in the relevant scientific community.
- Sampling: The survey must use a representative sample of consumers who are likely to encounter the two marks in question.
- Control group: The survey should include a control group that is shown the original mark without any changes, while the test group is shown the original mark and the allegedly infringing mark.
- Questions: The survey questions must be clear, unbiased, and designed to measure consumer confusion accurately.
- Timing and context: The survey should be conducted in the same market and at the same time of year as the alleged infringement.
- Expert testimony: Expert testimony may be required to explain the methodology and results of the survey to the court.
Courts may also consider other factors, such as the degree of similarity between the marks, the strength of the plaintiff’s mark, and the level of consumer sophistication in the relevant market.
If a consumer survey meets these requirements, it may be admissible as evidence in a trademark case. However, the weight given to the survey results will depend on the specific facts of the case and the credibility of the survey methodology.
How a Flawed Survey Could Damage Your Case
Hiring qualified survey experts will help prevent your trademark survey results from being attacked.
In Cumberland Packing Corp. v. Monsanto Co., 140 F.Supp.2d 241 – Dist. Court, E.D. New York (2001), for example, “the court determined that the results of the [plaintiff’s] surveys were unreliable because of serious flaws in the protocol and methodology,” and decided in the defendant’s favor.
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the plaintiff’s surveys were deemed inadmissible because the court determined them to be poorly constructed and unscientific. The survey expert was also rejected as not qualified “to design a survey or interpret survey results” [see 45 F.Supp.3d 1167-1170].
If you are concerned about the admissibility of consumer surveys in your trademark cases, Keegan & Donato Consulting will work to deliver the assistance you need. We can quickly deliver intelligence within a wide range of budgets. Call us today at (914) 967-9421.