Dental supplier defends trade dress with AMS critique of plaintiff survey

The client, a manufacturer of supplies used by oral surgeons, was accused of product configuration trade dress infringement by a much larger manufacturer. To support its claim, the plaintiff produced two surveys. One purported to establish that the product configuration had secondary meaning and the other attempted to show confusion related to this design. Under the direction of an Applied Marketing Science, Inc. (AMS) expert, AMS evaluated the validity of both of the plaintiff’s expert reports and surveys. AMS showed that both studies were critically flawed and could not be relied upon as evidence of either secondary meaning or confusion. These flaws included how the universe was defined, how the sample was selected, how the products were shown to respondents and how responses were collected and coded. The court agreed with this analysis and cited the AMS expert in his ruling, which granted summary judgment to the client.