Barton Beebe, Roy Germano, Christopher Jon Sprigman, and Joel H. Steckel, scholars at New York University (the first three at the law school), have published an important article on the topic of trademark survey evidence: "The Role of Consumer Uncertainty in Trademark Law: An Experimental and Theoretical Investigation". For those of you contemplating the commissioning of a survey (and who isn't?), this is a must read. [download here].
Abstract
Nearly every important issue in trademark litigation turns on the
question of what consumers in the marketplace subjectively believe
to be true. To address this question, litigants frequently present
consumer survey evidence, which can play a decisive role in driving
the outcomes of disputes. But trademark survey evidence has proven
to be highly controversial, not least because it is notoriously
prone to expert manipulation. In this Article, we identify and
present empirical evidence of a related, but more fundamental
problem with trademark survey evidence: while all the leading
survey formats in trademark law test for whether consumers hold a
particular belief, they do not test for
the strength or the varying degrees of
certainty with which consumers hold that belief. In
short, by treating the question of consumer beliefs as essentially
binary, the formats do not test for belief strength.
Yet as the social science literature has long recognized, the
strength with which consumers hold particular beliefs shapes their
behavior in the marketplace, and thus it should also shape, we
believe, how trademark disputes play out in the courtroom. Through
a series of experiments using the three leading trademark survey
formats (the
so-called Teflon, Eveready,
and Squirt formats), we show the remarkable
degree to which these formats as conventionally designed
overlook—or suppress—crucial information about consumer
uncertainty. We further demonstrate how a low-cost,
easily-administered, and relatively simple modification in these
formats can reveal that information. We discuss both the practical
and theoretical implications of our findings. As a practical
matter, trademark survey evidence that shows only weakly-held
beliefs (or that does not even test for belief strength) should
not, without more, satisfy a litigant's burden of persuasion on
the issue addressed by the survey. Furthermore, in line with
courts' growing efforts in intellectual property cases to
tailor injunctive relief, survey evidence showing only weakly-held
mistaken beliefs may provide courts with the opportunity to fashion
more limited forms of relief short of an outright injunction. As a
theoretical matter, we explain how trademark survey formats that
reveal the true extent of consumer uncertainty in the marketplace
may finally force trademark law and policy to confront normative
questions it has long left unanswered going to exactly what kind of
harm trademark law is meant to forestall.
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