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

41 questions on daubert and the consumer survey, answered and cited by the UpLaw editorial team.

• Are there grounds to exclude a survey beyond Rule 702?
• Can a damages expert be excluded for failing to apportion damages?
• Can an expert be challenged on qualifications rather than methodology?
• Can expert testimony be excluded for a disclosure failure rather than unreliability?
• Does a bench trial versus a jury trial change survey strategy?
• Does a survey have to replicate real marketplace conditions?
• Does Daubert apply to consumer surveys, which are not laboratory science?
• Has the 2023 Rule 702 amendment shifted the weight-versus-admissibility balance for surveys?
• How did the 2023 amendment to Rule 702 change expert challenges?
• How does a party defend its survey against a Daubert challenge?
• How do online consumer surveys fare under Daubert?
• How do the Second Circuit and the New York district courts treat survey challenges?
• How is a Daubert motion procedurally raised and decided?
• How should a challenger structure a survey exclusion motion?
• Is a consumer survey required to win a trademark case?
• Is the apportionment requirement unique to trademark law?
• Is there a hybrid between the Eveready and Squirt formats?
• What are consumer surveys used to prove besides likelihood of confusion?
• What are the criteria for a trustworthy consumer survey?
• What are the standard grounds for challenging a trademark confusion survey?
• What did Daubert v. Merrell Dow hold?
• What does an excludable damages model look like in a trademark case?
• What does a survey that gets excluded actually look like?
• What does a survey that survives a Daubert challenge look like?
• What does it mean for a survey to be double-blind, and what quality controls do online surveys need?
• What is a control group in a confusion survey, and why does it matter so much?
• What is a Daubert motion in a trademark case?
• What is the “analytical gap” from General Electric v. Joiner?
• What is the difference between the Frye and Daubert standards, and does it matter for trademark cases?
• What is the Eveready survey format?
• What is the leading case for keeping a flawed survey in evidence?
• What is the single most common reason trademark surveys get excluded?
• What is the Squirt survey format and when is it appropriate?
• What is the survey “universe” and why is it the most important design choice?
• What makes a survey question leading, and why is that fatal?
• What reference works do courts use to evaluate survey reliability?
• When does a survey flaw go to weight rather than admissibility?
• Which district court decisions best illustrate detailed survey gatekeeping analysis?
• Why do courts scrutinize surveys so closely if they are such good evidence?
• Why is survey evidence so powerful in trademark cases?
• Why should a Daubert motion be coordinated with summary judgment?