Reading and Building Trademark Confusion Surveys: A Practical Guide to Expert Methodology

57 questions on reading and building trademark confusion surveys, answered and cited by the UpLaw editorial team.

• Can a badly designed control make a survey worse than no control at all?
• Can a survey universe be broader than actual purchasers in a post-sale confusion case?
• Can a survey with a strong net confusion number still be given minimal weight?
• Can a trademark survey be excluded under Rule 403 even if it survives Rule 702?
• Can where a mall-intercept survey was conducted invalidate it?
• Do courts give online trademark surveys less weight than in-person surveys?
• Does choosing the Squirt format instead of Eveready change the required survey universe?
• Do survey flaws go to weight or to admissibility?
• Do the same methodological rules apply to secondary meaning, fame, and genericness surveys?
• How can two surveys in the same trademark dispute reach opposite conclusions?
• How did question wording undermine the survey in 1-800 Contacts v. Lens.com?
• How does Federal Rule of Evidence 702 apply to a trademark survey expert?
• How does Federal Rule of Evidence 703 apply to survey evidence?
• How does the Daubert trilogy apply to social-science evidence like consumer surveys?
• How does the survey universe change in a reverse-confusion case?
• How do you choose between the Eveready and Squirt survey formats?
• How is a secondary meaning survey designed?
• How large should a trademark survey sample be?
• How much net confusion is enough to support a likelihood of confusion?
• How should a lawyer attack an opponent's trademark survey?
• How should open-ended survey responses be coded?
• In what order should a lawyer read a trademark survey report?
• Is a consumer survey required to win a trademark infringement case?
• Is a test survey commissioned by counsel discoverable?
• Is it cherry-picking to limit a survey universe to specialized purchasers?
• Is it proper to exclude survey respondents who admit they are guessing?
• Is survey confusion the only thing that decides a likelihood-of-confusion case?
• Should a confusion survey offer a don't know option?
• What authorities do courts rely on to evaluate trademark survey methodology?
• What did the Cracker Barrel survey show, and why did it succeed?
• What does a trademark confusion survey actually measure?
• What does double-blind administration mean in a trademark survey?
• What happens if the same dispute involves weak marks instead of strong ones?
• What is a control group in a trademark confusion survey?
• What is an aided Eveready survey?
• What is a Teflon survey?
• What is a Thermos survey, and what is its known weakness?
• What is net confusion, and why does it matter more than the raw rate?
• What is the difference between an over-inclusive and an under-inclusive survey universe?
• What is the difference between probability and non-probability sampling in survey evidence?
• What is the Eveready survey format?
• What is the Squirt survey format, and when should it be used?
• What is the universe in a trademark survey?
• What makes a survey question leading in a trademark case?
• What net confusion figures have courts actually credited in reported cases?
• What quality-control screens should a survey use to catch inattentive respondents?
• What role do screening questions play in a trademark survey?
• What should the proponent of a survey do to make it survive a Daubert challenge?
• What universe should a dilution fame survey use?
• What was wrong with the surveys in J.T. Colby v. Apple?
• When is the Eveready format the wrong choice?
• When should a party commission a trademark survey at all?
• Whose purchasers should a forward-confusion survey sample?
• Why are controls especially critical in Squirt surveys?
• Why are Squirt surveys vulnerable to attack?
• Why does marketplace realism in the survey stimulus matter?
• Why is a wrong survey universe usually fatal rather than merely a weight problem?