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Trademark Surveys – General Standards of Admissibility

Trademark Surveys

General Standards of Admissability

Courts consider the following factors when determining the admissibility of a Lanham Act survey. Specifically, whether the:

  1. Relevant Universe
  2. Proper Sample
  3. Data Collection
  4. Analysis
  5. Control
  6. Procedures & Protocols
  7. Objectivity

1.  Relevant Universe

Reliable trademark surveys examine and measure the responses of purchasers and potential purchasers of the products at issue (i.e., the relevant universe). Surveys have been criticized where the universe either excludes potential purchasers (under-inclusive) or is overbroad (over-inclusive).

2. Sample

Testing all prospective purchasers in the relevant universe is most oftentimes impossible. The expert must employ sampling procedures that statistically project results to the entire universe. Courts demand that such procedures be in accord with accepted, unbiased statistical principles.

3. Data Collection Method

Traditionally, there were 3 common data collection methods employed in trademark surveys: (i) the mall-intercept, (ii) the central location survey, and (iii) the telephone or internet survey. Courts, in assessing admissibility, will focus on whether the method selected is best suited to measure the relevant universe. With skyrocketing use, accessibility, and controls of the internet, online surveys have become the most popular type of survey.

4. Collection & Analysis

The data must be accurately collected, reported and analyzed in accordance with accepted statistical procedures. Courts demand that specific controls be employed to eliminate false or inaccurate results.

5. Control/Noise

Most courts will demand that a survey include a control in order to address possible noise among consumers (the “any two marks” factor). Using a control group(s) or question(s), the survey expert can test directly the influence of the stimulus. In some survey methods, however, a control group or question is not required.

6. Procedures and Protocols

The survey must be designed and deployed using professional procedures and protocols. For example, courts will refuse to admit surveys employing leading or confusing survey questions. In non-internet deployed surveys, courts generally require a very high standard of verification to ensure accuracy and to accord proper weight to the evidence. Some courts have refused surveys that do not employ a verification. A typical verification strategy is to call back 25% of all survey participants and confirm their answers.

7. Objectivity

Generally, courts require a "double blind" survey process which ensures that the client behind the survey is unknown to the survey platform and the participants.

Rhonda Harper MBA, Trademark Infringement Survey Expert, Expert Witness

Retained by more than 125 law firms, Ms. Harper is courtroom proven in virtually every circuit along with JAMS and TTAB.  Her 30 year career includes serving as a Fortune 100 chief marketing officer and an adjunct marketing professor. In addition to providing litigation consulting and research in the areas of business, licensing, marketing, advertising, in-store merchandising, and strategy, Ms. Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and the methodological pitfalls that can introduce bias or systematic error.

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