Article · Intellectual Property

Daubert and the Consumer Survey: A Practical Guide to Excluding Expert Testimony in Trademark Cases

Type
Article
Jurisdiction
National
Date
2025-03-14
Topic
Intellectual Property

A well-built consumer survey is the closest thing trademark law has to direct evidence of confusion, and the motion that keeps that survey away from the jury is the Daubert challenge. This guide explains, for lawyers and business readers alike, how Federal Rule of Evidence 702 and the Daubert-Joiner-Kumho gatekeeping trilogy govern survey, damages, and technical experts, and why the 2023 rewrite of Rule 702 has sharpened the judge's screening role. It sets out the seven criteria of a trustworthy survey, the difference between the Eveready and Squirt formats, and the enduring fight over whether a flaw goes to admissibility or merely to weight. It maps the recurring grounds of attack, shows how the Second Circuit and the New York district courts actually rule, and explains when a damages expert can be excluded for refusing to apportion. Two original worked hypotheticals, a two-sided litigation checklist, and an extended FAQ close the treatment.

Daubert and the Consumer Survey: A Practical Guide to Excluding Expert Testimony in Trademark Cases

Intellectual Property > Trademark Litigation | Published 14 March 2025 - Updated 3 July 2025 | UpLaw - uplaw.us

A single survey percentage can decide a trademark trial. The fight that matters most is usually not whether the jury will believe that number, but whether the jury will ever be allowed to hear it. That fight is the Daubert motion, and it is won or lost on methodology long before opening statements.

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