Harper Litigation Consulting and Research

The courts recognize two types of confusion in trademark or trade dress cases: Forward Confusion and Reverse Confusion.

The concept of secondary meaning is straightforward in intellectual property matters. A secondary meaning survey typically seeks to assess whether a “significant” or “substantial part” of the customer class associates a trademark or trade dress with a single source.

§11.493 Sampling/Opinion Surveys Statistical methods can often estimate, to specified levels of accuracy, the characteristics of a “population” or “universe” of events, transactions, attitudes, or opinions by observing those characteristics in a relatively small segment, or sample, of the population.

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

Not all survey expert witnesses are equal. Below are five key questions to ask before signing the letter of agreement. A valid and reliable survey can make all the difference to your case.

Experts can help throughout your entire case. Your expert witness can help in many ways, provided they have the right expertise and experience. Experts may be counted on by attorneys throughout the case process: Trial Strategy, Discovery, Depositions, Pre-Trial Preparation, and Trial.

Each of the 13 federal courts of appeal have their own test for evaluating whether a likelihood of confusion exists between two trademarks. Although the tests are not identical, most of them are substantially similar and use many of the same factors. And the factors are non-exclusive.

Is a Trademark Infringement Survey Really Necessary? Yes, according to the John Marshall Review of Intellectual Property Law. "Courts have continually utilized surveys to show evidence of secondary meaning, generieness, dilution, and functionality in trademark litigation." - The John Marshall Review of Intellectual Property Law, Robert Thornberg.