How attorneys use surveys to prove trademark infringement starts with a simple idea: show the court what likely purchasers actually think. It’s true that no one can read another person’s mind, but a survey carried out correctly can reveal a lot. Yes, documents and declarations help, but consumer perception sits at the heart of trademark law. A well-designed survey turns assumptions into genuine evidence by measuring confusion, association, or misleading takeaways among the people who matter: the relevant consumers in the marketplace.

Why Surveys Move the Needle

Courts look for reliable indicators of likely confusion. Surveys provide numbers tied to real human behavior:

• Do consumers think the accused product comes from the plaintiff?
• Do they believe the companies are affiliated?
• Are they taking away a message the law would consider deceptive?

When those answers to questions like the ones above come from a clean test-versus-control design, judges and juries can see the difference between a true effect and background noise.

What Attorneys Ask Surveys to Show

Most infringement matters focus on confusion, but the same tools also address related issues such as the following:

• Source confusion: Are purchasers mistaken about who makes or sponsors the product?
• Association/affiliation: Do respondents believe there’s a licensing or corporate link?
• Secondary meaning: For descriptive terms or trade dress, do consumers connect the feature to a single source?
• Deception in advertising: What message are people actually taking from an ad or listing?

Think of it this way, each question maps to a legal element. The survey’s job is to measure that element in the right population and report it plainly so judges and juries can quickly see the facts with no obscurity.

Getting the Universe Right

Everything turns on the “universe,” which are the people whose opinions count for the case. Look at it this way, if the dispute concerns a specialty tool, general consumers aren’t the audience. Instead, you need purchasers or decision-makers in that niche where the speciality tool is being used. Screeners confirm recent or likely category participation and purchase influence. When the universe is correct, the results speak to the marketplace the Lanham Act cares about.

Controls That Clarify Cause and Effect

Attorneys rely on controls to separate signal from static. The control removes or swaps the accused element so you can see what confusion exists without it. Basically, it lifts away the fog so you can see things clearly.

The difference between test and control is the effect of the challenged mark, get-up, or message. Basically, if you pair that design with neutral wording and a pretested questionnaire, and you can defend the findings on cross.

Stimuli That Mirror Reality

Surveys win credibility when they show what consumers actually see.

Such as:

• Product pages
• Packaging
• Shelf sets
• App screens
• Sponsored listings

Good practice explains how those materials were captured, how exposure was standardized, and why the presentation reflects real-world conditions.

Small choices, like image order, device compatibility, and load times are documented so the method is transparent and not mysterious. Basically, you’ll achieve clarity.

Quality Controls in the Field

Lawyers know the other side will challenge reliability (it’s inevitable). That’s why fieldwork includes attention checks, minimum-time thresholds, open-end verification, and device/IP de-duplication.

Reporting shows incidence rates, screen-fail reasons, and replacement logic.

The result is a clean audit trail from recruitment through coding that withstands Daubert and cross-examination.

Where Surveys Fit in the Case

Attorneys use surveys across the lifecycle of a dispute such as the following:

• Preliminary injunctions: Fresh data can support and reveal urgency. It can also show current marketplace harm.
• Summary judgment and trial: Methodologically sound results help fact-finders understand consumer perception so that things become clear.
• TTAB and platform enforcement: Empirical evidence strengthens claims beyond attorney argument which carries a great deal of weight.
• Rebuttals: A focused critique or a rebuttal survey can reveal universe errors, weak controls, or biased wording in an opposing study.

Want survey evidence that actually helps the court decide your case? Let’s talk about scope, timing, and budget. Contact Keegan & Donato Consulting, Inc. Call (914) 967-9421 or start a conversation online about how attorneys use surveys to prove trademark infringement in your matter.