Trademarks and Survey Evidence

If you are trying to prove a case of infringement either for or against your trademark, then one type of evidence that could be considered is survey evidence. Survey evidence was not always admissible and even today it is only admissible if it meets very high standards. Survey evidence is not required, but is considered significant evidence. Conducting such surveys can greatly increase the cost of litigation. Before deciding to proceed make sure you think you need it and be aware of how much it will cost. Such surveys must be performed by an independent party. This should be a qualified and credible expert who knows how to design such surveys with common criticisms in mind. The survey should be given to relevant consumers which were chosen through an unbiased process. Those chose to conduct the interview must be independent and have no knowledge of the litigation. The questions have to be clear, precise, and most importantly must not be leading. All data must be reportedly accurately and analyzed through accepted principles. Proper control must be used. This means that errors and other influencing factors are minimized. It is possible for surveys to demonstrate evidence of secondary meaning, likelihood of confusion, tarnishment, and/or dilution. Surveys can bolster your argument, but only if they are conducted properly and strictly conform with all requirements.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.