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2014

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Intellectual Property Law

False advertising

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Trademark Surveys: An Undulating Path, David Franklyn, Shari Seidman Diamond Jan 2014

Trademark Surveys: An Undulating Path, David Franklyn, Shari Seidman Diamond

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When a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, the pivotal legal question is: how are consumers likely to perceive the mark or advertising? In the early days of trademark litigation, a parade of consumer witnesses, carefully selected by one of the parties to support a trademark claim, would testify about their reactions to a mark. That approach has given way to systematic survey evidence reflecting the responses of a substantial number of consumers selected according to an explicit sampling plan, asked the same questions, and unaware who sponsored the survey.

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