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The Intellectual Property StrategistFeaturesEvidenceExpert WitnessesIntellectual PropertyLitigation

Which Method Is for You? Not All Surveys Are Made the Same

By Laura O'Laughlin, Harriet Ho and Duy (Joey) Duong
September 01, 2020

As survey evidence has become increasingly common in litigation, it is important to remember that not all surveys are made the same. It's important to be able to identify the right survey methodology for the matter at hand. For this article, as for Part 1 and Part 2 in our series, we draw on our review of a set of over 300 cases involving survey evidence, including over 150 involving Daubert challenges spanning different survey methodologies. These rulings provide insight into factors that courts may consider when determining whether to admit surveys and how much weight to afford them. The appropriate use of survey methodologies frequently is a consideration in those determinations.

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Trademark Infringement

Are You Famous, Among the Famous, or Both?

In consumer confusion matters, consumers may confuse a product from one company with a product from another. Eveready and Squirt are two common survey formats used in U.S. courts to assess potential confusion. Courts generally view trademark strength and marketplace proximity as factors to consider when choosing between Eveready and Squirt. (Note: The surveys discussed in this article typically are referred to by the names of parties or at-issue marks in seminal cases in which the methodologies were introduced or established.)

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