When a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, the pivotal legal question is: how are consumers likely to perceive the mark or advertising? In the early days of trademark litigation, a parade of consumer witnesses, carefully selected by one of the parties to support a trademark claim, would testify about their reactions to a mark. That approach has given way to systematic survey evidence reflecting the responses of a substantial number of consumers selected according to an explicit sampling plan, asked the same questions, and unaware who sponsored the survey.
Part I provides a description of the primary legal topics that appear in trademark and deceptive advertising surveys. Part II reviews the recent studies that investigate the presence and influence of surveys in reported infringement decisions, identifying some of the limitations of these studies as a way to describe the role that surveys play in trademark litigation. Part III takes a close look at a sample of the reported cases that did not include survey evidence to begin our assessment of why surveys are or are not submitted in trademark cases. Part IV describes our survey, including a description of our methodology (the full survey instrument appears in an Appendix), questions, and results. Part V offers an explanation of why surveys may be underrepresented in reported cases, and when surveys succeed and fail as persuasive evidence. We analyze the limitations of survey methodology in current trademark litigation identified by our respondents, as well as judicial reactions to surveys that provide clues to the ambivalence of some judges to the surveys presented in court.
92 Tex. L. Rev. 2029 (2014).