In most trademark cases, questions of liability, and to a lesser extent damages, hinge on consumer perceptions regarding the trademarks or trade dresses at issue. Often, the most effective way to probe and prove the relevant consumer perceptions is with a well-designed survey. While surveys have drawbacks—including being costly, manipulable, complex and unpredictable—they have become almost essential in addressing certain trademark law issues, such as likelihood of confusion, secondary meaning, genericness and dilution.
The study of consumer behavior is a complex area. Legal treatises present elaborate guidelines on survey design, population definition, interview techniques and survey question structure. Litigators often rely heavily on survey experts to analyze and explain the issues and pitfalls particular to each case. However, to effectively communicate with one’s survey expert and analyze survey-related issues, it is critical to understand the basic terms and concepts.
General Principles
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