How litigation research strengthens trademark survey evidence comes down to a central idea: do the homework before you run the numbers. A solid research plan keeps the survey focused on the issues the court actually needs to know to make a decision. It also helps to head off common attacks from the other side and documents each step so the results not only read cleanly but also defend cleanly. When you do that, judges and juries can focus on the big picture of what matters: how real consumers see the marks, claims, or designs in dispute.

Start With the Right People (Your “Universe”)

Everything begins with the “universe,” which is the group of people whose opinions count for a case. Here’s an example: if you’re studying confusion about a pet supplement, you need current or likely pet-supplement purchasers, which would likely be pet owners. If you’re testing an ad for B2B software, your audience is the evaluators and purchasers of the software and not general office workers. This all begins with clear screeners that confirm real category participation and purchase influence to keep the study grounded in marketplace reality for the greatest success.

Use Controls to Separate Signal From Noise

Next, use controls. Remove the accused mark or message. Then compare the results. Look at the difference between the test and what the control shows as the real impact of the accused evidence. This is how you get rid of the background noise so you can quickly identify the real effects. If you don’t carry out the comparison then the “confusion” becomes shaky.

Show the Marketplace Honestly (Your Stimuli)

Your stimuli should mirror what consumers actually see when they look at things like packaging, product pages, ad units, or shelf sets.

Good litigation research needs to explain the following for success:

• How those stimuli were captured or built
• Why they reflect real conditions
• How exposure was standardized

Seemingly small choices such as image angles, order of presentation, device compatibility, and load times can all matter. You’ll want to spell them out in plain English so the fact-finder can understand the care you took.

Fieldwork That Holds Up

Quality control in fielding is where many surveys win or lose.

• Use attention checks and speed thresholds.
• Remove duplicates with IP/device safeguards.
• Validate open-ended answers.
• Keep an audit trail of incidence rates, screen fails, and replacement logic.

When the other expert across the aisle questions reliability, you’ll have a clean record from recruitment through coding to show why your data can be trusted and will stand up even under extreme scrutiny. This puts you ahead and validates everything.

Design With Rebuttal in Mind

From the start, you need to plan for scrutiny from day one. You have to be ready to be under a magnifying glass

The best way to prepare for the situations is simply to ask yourself the same questions you’d ask if you were critiquing the other side:

• Is the universe right?
• Are controls comparable?
• Could the wording push respondents?
• Are we reporting everything, not just the flattering bits?

This mindset protects your own study and gives you a clear, specific basis to explain why an opposing study may be less probative.

When You Need a Rebuttal

Sometimes you need to respond to a study that’s already in the record.

A focused rebuttal highlights material flaws that could mislead the court such as things like the wrong population, weak or missing controls, leading questions, or stimuli that don’t match the marketplace.

If needed, a short rebuttal survey can clarify a key point that everything is hinging on. The aim isn’t nitpicking; instead it’s about showing why the challenged method can’t reliably answer the legal question: confusion, secondary meaning, genericness, or ad takeaways.

If you’re building or challenging survey evidence, reach out to Keegan & Donato Consulting Inc. to map a research plan that fits your facts and timeline. Start a conversation online or call (914) 967-9421 to discuss how litigation research strengthens trademark survey evidence for your matter.