How to create acceptable, compelling trademark survey evidence?

How to create acceptable, compelling trademark survey evidence?

  • 17 April, 2024
  • Nyall Engfield

For a trademark survey to be considered trustworthy and accurate, several important features must be incorporated into its design and implementation. These features ensure that the survey results are reliable and valid, providing meaningful data that can inform decisions or conclusions.

A recent decision from Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit (Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 735 F.3d 735 (7th Cir. Ill. 2013).) highlights some of the pitfalls of using surveys in litigation: "Consumer surveys conducted by party-hired expert witnesses are prone to bias. There is such a wide choice of survey designs, none foolproof, involving such issues as sample selection and size, presentation of the allegedly confusing products to the consumers involved in the survey, and phrasing of questions in a way that is intended to elicit the surveyor’s desired response—confusion or lack thereof—from the survey respondents."

There are three categories of biases that must be avoided in preparing convincing evidence in trademark cases:

1) Selection biases relate to the population studied  - if the wrong people are asked, the evidence may be excluded. In most cases, it should be the potential consumer of the product or services.
2) Information-related biases relate to which questions are asked, how the
questions are asked, and what answers are offered. The survey expert should be wary of unexpected meanings and ambiguities.
3) Analytical biases relate to how the data are analyzed, such as the
interpretation of open-ended responses. Open-ended surveys in particular require careful and subjective analysis in order to accurately determine the results.

Here are some key features to consider:

  1. Clear Objectives: A survey should have well-defined objectives. Understanding what you need to measure and why helps in designing questions that accurately capture the necessary data.

  2. Representative Sampling: The survey sample should accurately represent the population you’re studying. This involves selecting participants who reflect the diversity of the population in terms of demographics, behaviors, and other characteristics relevant to the study.

  3. Reliable and Valid Measures: The survey questions should be both reliable (consistently yielding the same results under the same conditions) and valid (accurately measuring what they are intended to measure). This often requires testing and refining the survey instruments.

  4. Neutral Wording: Questions should be framed in a neutral manner without leading or biased language that could influence the respondents' answers.

  5. Logical and Clear Question Order: The sequence of questions should follow a logical order to avoid biasing responses. Earlier questions should not influence how people respond to later questions in the survey.

  6. Confidentiality and Anonymity: Assuring respondents that their responses are confidential and, if possible, anonymous can help in obtaining honest and accurate responses.

  7. Appropriate Question Types: Using the right mix of question types (e.g., multiple choice, Likert scale, open-ended) can help in capturing the range of data needed. Each type of question can serve a different purpose and provide different types of data.

  8. Pilot Testing: Conducting a pilot test of the survey with a small segment of the target population can help identify any issues with the survey design, such as confusing questions or technical problems, before the full survey is launched.

  9. Data Collection and Analysis: Employing rigorous data collection and analysis methods ensures that the data is handled systematically and errors are minimized.

  10. Ethical Considerations: The survey should be conducted in an ethical manner, respecting the rights of participants, including obtaining informed consent when necessary.

Incorporating these features into a survey enhances its credibility and the utility of the information it generates, making the findings more actionable and accepted by stakeholders.

Contact us to discuss your evidentiary needs and how a survey can help support them.

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