Frequently Asked Questions about Surveys for IP Cases

As a follow-up to our webinar, “Survey Evidence in Intellectual Property (and other) Litigation,” Applied Marketing Science answers a few questions about surveys for intellectual property cases.

Q. What is the difference between the Squirt survey and Eveready survey formats for testing likelihood of confusion?
The two survey formats that courts have recognized as acceptable to assess likelihood of confusion, “Eveready” and “Squirt,” were established through case law (Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366 (7th Cir. 1976) and Squirtco v. Seven-Up Co., 628 F.2d 1086 (8th Cir. 1980), respectively). In a typical Eveready survey to assess forward confusion, respondents view the junior user’s mark or product and answer open-ended questions inquiring about the source of the product and beliefs about that company’s affiliation with and sponsorship from another company. Respondents who reference the senior user are counted as confused. Conversely, in a Squirt survey to assess forward confusion, respondents view both the junior user’s and senior user’s marks or products and answer closed-ended questions about whether they believe that the marks or products are put out by the same company or companies with a business affiliation or sponsorship connection. Respondents who believe the junior user’s mark is put out by, affiliated with, or sponsored by the senior user are counted as confused.

Q. How do you determine the right method for collecting data?
When deciding on the appropriate method for collecting data in a given case, trademark survey experts will consider a variety of issues including the ease of recruiting a representative sample and the ease of replicating the marketplace realities, as well as cost and timing. For many Lanham Act surveys, such as likelihood of confusion surveys, secondary meaning surveys, dilution surveys, and false advertising surveys, it is possible to evaluate the key issues using an internet methodology. Because ever-growing numbers of consumers shop for and purchase goods and services online, an internet survey can often adequately represent the purchasing environment to survey respondents. There are times, however, when other survey methods are more appropriate. If the relevant population is not well-represented on an online panel (consumers in a very limited geographic area, for example), a telephone or in-person recruit may be more successful than an internet survey. In other cases, a mall-intercept study could be useful if it is necessary to provide respondents with the opportunity to physically interact with a product in order to replicate the marketplace realities.

Q. How do you determine what is an appropriate control to use for a survey?
The appropriate control stimulus is one that is exactly like the test stimulus but for the element of the test stimulus at issue in the case. In some cases, the control can be a real product but in other cases it is advisable to create a fictional control by digitally altering the test stimulus. Consider, for example, a likelihood of confusion survey designed to assess the degree to which a restaurant name with a “Mc” prefix causes a likelihood of confusion with McDonald’s. An appropriate control would be one that alters the allegedly infringing prefix – possibly by simply removing it. The objective when designing a control is to alter the stimulus so that it is no longer allegedly infringing, while keeping it as similar as possible to the original (test) stimulus. In a false advertising survey designed to measure whether and to what degree consumers are misled by an advertisement, the control stimulus is typically a version of the advertisement that is as close as possible as the original, but that omits the allegedly misleading element or alters it so that the plaintiff would not find it objectionable.

Our survey experts have experience designing consumer surveys to assess likelihood of confusion, secondary meaning, deceptive advertising, dilution, genericness, and fame, and we will work with your team to determine the most appropriate survey format and data collection method to assess the key issues in your case.

Are you evaluating an opposing expert’s survey? Trying to create a control stimulus? Deciding on whether to use distractor products in a Squirt survey? You’re in the right place. We regularly write about methodology and design considerations for consumer surveys for litigation. Subscribe to our blog to receive updates straight to your inbox when new blog posts are published.