How attorneys defend against dilution claims using surveys comes down to one goal: show the court what’s really happening in consumers’ minds and what isn’t. You need to make things clear. Dilution isn’t about point-of-sale confusion. It’s about whether the junior use actually blurs the link to a famous mark or tarnishes it. The right survey can test for that specific kind of mental association. Also, just as importantly, it can show when it’s weak, rare, or tied to something other than the accused use.

First, Clarify What Needs Proving

In dilution cases, plaintiffs typically claim blurring.

• Blurring is where your use weakens the unique link to the famous mark.
• Tarnishment is where your use harms their reputation.

Defense surveys don’t chase confusion.They measure association such as how often respondents think of the famous brand when seeing the junior use. They also examine whether that association is attributable to the accused element or if it’s just background familiarity with the category or advertising clutter.

Get the Universe Right

One of the keys is to start with people whose opinions matter. If the accused use is a consumer product, that means current or likely category purchasers are who you want to focus on.

For B2B, it may be purchasing influencers or specifiers that you’ll want to zero in on.

Screeners should verify real engagement with the category. You need to ensure that your results reflect marketplace reality. A mis-aimed universe can inflate or deflate association rates and hand the other side an easy attack so you need to be on your toes when focusing.

Use Controls to Isolate the Accused Element

A defense survey lives or dies on its control. The control removes or swaps the challenged element while keeping everything else constant.

By comparing test vs. control, you can show whether any association is caused by the accused mark or is just the result of something else such as:

• Familiar colors, shapes or layout.
• Words commonly used by brands

The net difference is what counts in the long run.

Measure Association: Not Just Recall

Ask neutral, non-leading questions that capture mental association without steering respondents. Your goal is a clean read on whether the junior use meaningfully points consumers toward the famous brand. You’ll need to determine if the signal is weak and scattered.

Show That “Fame” Isn’t a Given

Dilution requires a famous mark. It must be widely recognized by the general consuming public typically as of a specific date.

Defense strategy often pairs survey results with marketplace facts to question fame or timing. Answer the following questions:

• Is the claimed fame broad enough?
• Was it established before the junior use began?

A carefully designed awareness survey can test whether recognition is truly widespread and not just strong within a very specific niche.

Tie Findings to the Statutory Factors

Courts look at the following

• The distinctiveness of the famous mark
• The degree of similarity
• The exclusive use by the owner
• The actual association between the marks

Your report should map results to those points:

• Low net association
• Meaningful alternative explanations (e.g., common shapes or colors)
• Modest similarity in context

The above is evidence that consumers are not shifting their mental link away from the famous source.

Rebutting a Plaintiff’s Dilution Survey

When the other side puts in a dilution study, a focused rebuttal can explain:

• Wrong universe (too broad or too loyal)
• A weak or incomparable control
• Stimuli that don’t match the marketplace
• Leading wording that inflates association

If needed, a short rebuttal survey can demonstrate how a proper control collapses the claimed effect.

In practice, how attorneys defend against dilution claims using surveys is about disciplined measurement which must consist of the right universe, a solid control, marketplace-faithful stimuli, and neutral questions that read and defend cleanly. If you do that, then you can show the court when alleged “blurring” is really just background familiarity and not actual dilution.

Facing a dilution claim? Let’s pressure-test the facts with a focused association study and a clean control. Contact Keegan & Donato Consulting, Inc. Start a conversation online or call (914) 967-9421 to talk through options online about how attorneys defend against dilution claims using surveys in your matter.