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IP Lanham Act Survey Rules

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.

By Harper Litigation Consulting and Research
Trademark and Trade Dress Surveys, Marketing, Licensing, Advertising - Expert Witness
ABOUT THE AUTHOR: Harper Litigation Consulting and Research
Founded in 2005, Harper Litigation Consulting and Research has been trusted by hundreds of law firms. Ms. Rhonda Harper is a courtroom proven expert witness, having testified in virtually every circuit, along with AAA, JAMS, TTAB, and the PTO. As a former Fortune 100 chief marketing officer and an adjunct marketing professor, she has provided testimony in cases involving intellectual property infringement, misleading advertising, licensing, breach of contract and performance, unfair competition, consumer privacy, personal injury, and more. Ms. Harper has conducted or rebutted more than 200 intellectual property surveys.

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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