Harper Litigation Consulting and Research : 214-244-4608

Surviving Survey Submissions – 702 & 403

Avoiding Daubert Challenges


With more than 160 trademark and trade dress surveys completed, Rhonda Harper, Harper Litigation Consulting and Research, ensures she  meets the standards set forth in Fed. R. Evid. 702 and Fed. R. Evid. 403. Rule 702 which codifies the Daubert requirement for admissibility of scientific evidence. Rule 403 allows a court to exclude evidence if its probative value is substantially outweighed by a danger of “unfair prejudice, confusing the issues, [or] misleading the jury.”

Although courts will often allow experts to testify even if the report appears to contain errors, Courts frequently hold these errors against the weight of the opinion, not its admissibility, and expect counsel to expose the errors for the jury during cross-examination. However, where the errors in a survey are too fundamental or too pervasive, courts often exclude surveys under both Fed. R. Evid. Rule 702 and 403. See Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 562-63 (S.D.N.Y. 2007).

Therefore, Ms. Harper carefully selects the correct survey methodology:  (1) The Squirtco–format, which shows respondents both the plaintiff’s and the defendant’s trademarks, or (2) the Evereadyformat in which the survey only shows the respondents the defendant’s trademark.

Ms. Harper generally will select a universe of respondents who are past, current, or future purchasers. However, in some cases this is not appropriate. Courts have excluded surveys that have included current owners, even where it might have been reasonable to infer that current owners would be highly likely to purchase the same goods in the future. See Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112, 118 (2d Cir. 1984).

Selecting the right stimuli is critical. Ms. Harper knows when to show marks in marketplace context and when it is appropriate to show simply the mark in standard font. See Superior Consulting Services, Inc. v. Shaklee Corporation, et al., Case No. 6:16-cv-2001-Orl-31GJK (M.D. Fla. May 4, 2018). See also Dooney & Bourke, Inc., 525 F.Supp.2d at 593-4.

To scientifically measure cause and effect of confusion, Ms. Harper employs a proper control. The stimulus for the survey’s control should “share as many characteristics with the experimental stimulus as possible, with the key exception of the characteristic whose influence is being assessed.” Reference Manual on Scientific Evidence at 258 (Federal Judicial Center 2000). See Cumberland Packing Corp. v. Monsanto Co., 32 F.Supp.2d 561, 75 (E.D.N.Y.1999) (“Given the inadequacy of the controls, one cannot determine from the data the extent of the relevant type of confusion by indirectly approximating the background noise.”).

Ms. Harper is careful not to ask extraneous questions or improperly ask respondents for legal conclusions; for example, whether the respondents believe the defendant “needed to get permission” to use a mark. Dooney & Bourke, Inc., 525 F.Supp.2d at 597.

Finally, Ms. Harper's expert report follows all of the guidelines to accurately describe the survey, reports coding, and analysis.