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Consumer Surveys in Trademark Infringement Cases

by | May 17, 2019 | Intellectual Property

Last week, I had the pleasure of attending the Defense Research Institute (DRI) Intellectual Property Litigation seminar in Austin, Texas. During the course of the seminar, I had the opportunity to talk with an expert in consumer surveys for trademark infringement cases.

Cynthia Cohen, Ph.D. with Verdict Success explained that pilot consumer surveys can often be used early in a case to help gauge whether there is likelihood of confusion among consumers with a client’s products or services. A pilot survey is like a test run prior to a full-fledged survey that helps clients determine the strength of their case early in the process.

The Process for Pilot Consumer Surveys

Surveys have been conducted on everything from trademarks for tennis shoes to trademarks for restaurant services. The type of survey conducted depends upon the type of product or service and the type of consumer. An expert will create a different type of survey for products and services that are sold in a business-to-business setting as opposed to products and services that are offered to the general public. A pilot survey can be conducted through the internet or by intercepting consumers in public places, such as shopping malls.

The expert will identify the type of consumers that purchase the products or services. A good expert will actually interview the client in addition to conducting some research on their own to determine the universe of the survey (or consumer base that will be surveyed).

Sometimes the universe is broader that the client realizes. For instance, some clients may believe that people over 60 years of age are their primary consumers, but the expert may determine that there are consumers in their 40s and 50s also and ensure a sample of that age group is included.

A good expert will consider the type of product or service, the type of consumers, whether there are geographic limitations, how the product or service is marketed to the consumer, the type of product packaging, and many other factors to create an accurate survey tool.

Seek Help from an Intellectual Property Attorney

If another party accuses your business of trademark infringement and claims consumers are likely to be confused about the source of the goods or services when viewing the trademarks, you should talk to your intellectual property lawyer about the feasibility of conducting a pilot survey early in the case. It may be worth spending the money on this tactic to see if there is really likelihood of confusion and determine how strong your defense could be.


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