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Intellectual Property Survey? Make Sure You Know the Rules.

Expert Witness: Harper Litigation Consulting and Research
The following factors courts often consider when determining the admissibility of a Lanham Act survey, to guide its surveys and reports. Specifically, whether the:

-population was properly chosen and defined

-sample chosen was representative of that population

-data gathered were accurately reported

-data were analyzed in accordance with accepted statistical principles

-questions asked were clear and not leading

-survey was conducted by qualified persons following proper interview procedures

-process was conducted to ensure objectivity

Relevant Universe
If the right audience isn't surveyed the entire study can be disqualified. You should examine and measure the responses of purchasers and potential purchasers of the products or services at issue. Be sure to take great care to ensure that the universe neither excludes potential purchasers (under-inclusive) nor is overbroad (over-inclusive).

Most of the time it would be impossible, or infeasible, to test
all prospective purchasers in the relevant universe. Sampling procedures that statistically project results to the entire universe must be used. Courts demand that such procedures be in accord with accepted, unbiased statistical principles.

Collection Method
Now common due to household penetration rates, large panels, and cost, online studies surveys is now the standard in most cases. There are many premier online platforms and sample companies from which to choose.

Accurately collecting, analyzing and reporting data in accordance with accepted statistical procedures is critical. Among the many considerations, ensure that you deploy the right survey types, not to use leading questions, and take great care to code and accurately represent the findings.

"Noise" occurs within surveys. In most cases, courts require that a survey include a control in order to address possible noise among consumers. Using a control group or question, we can test directly the influence of the stimulus.

ABOUT THE AUTHOR: Harper Litigation Consulting and Research
Retained by 100+ law firms since 2005, Ms. Harper is courtroom proven. She has been engaged to provide 65+ surveys, 80+ reports, 30+ rebuttals, 45+ depositions, and serve in 20+ trials. She has provided services to both Plaintiffs (60%) and Defendants (40%) across trademark and trade dress, packaging, merchandising, defamation, licensing, breach of contract, advertising, and commercial reasonableness. She has provided services in virtually every Circuit as well as JAMS and TTAB.

Copyright Harper Litigation Consulting and Research

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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