History of Surveys in Litigation

Consumer surveys are one of the most powerful tools available in trademark or trade dress infringement cases, deceptive advertising, class action cases, and many other types of litigation.  

In 1975, Federal Rule of Evidence 703 allowed survey data to be used as evidence in legal proceedings, stating that surveys were allowed if they were "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The focus also shifted to whether surveys were "conducted in accordance with generally accepted survey principles" and the "results were used in a statistically correct way." 

Today, litigators work with survey researchers to obtain information on people's attitudes, behavior and preferences.

Applications of Surveys in Litigation

Surveys are routinely used in Lanham Act cases to support various legal claims. Such claims include:

  • Likelihood of Confusion
    • A likelihood of confusion survey assesses whether a "reasonably prudent" consumer would be confused by the use of similar marks on competing products. If a substantial number of respondents believe that the two marks are related or affiliated in some way, then there is strong evidence of potential confusion.

  • Dilution
    • A dilution survey typically seeks to assess whether relevant consumers associate unauthorized trademark use with the trademark owner's products or services. It can also be used to determine whether the products or services sold using the allegedly infringing mark are perceived negatively within the marketplace. 

  • Secondary Meaning
    • A secondary meaning survey typically seeks to assess whether relevant consumers associate a trademark or trade dress with a single source. If relevant consumers associate the mark with a single source (rather than associating the mark with a class of products as a whole), this provides strong evidence that the mark has acquired secondary meaning.

  • Genericness
    • A genericness survey typically seeks to assess whether relevant consumers consider a mark to be a common name or design, or a brand name or design. If consumers believe the mark is a common name (rather than associating it with a specific product or service), it provides strong evidence that the mark is generic. Similarly, if consumers believe the mark is associated with a single brand, the evidence is strong that the mark is not generic. 

Other types of cases where surveys are used include: false advertising cases, patent infringement cases (to assist the court in evaluating damages), and class action matters

Survey Design Considerations & Critical Issues

Each individual survey that is introduced into evidence needs to meet certain criteria, and failure to follow these standards opens up a survey to criticism which may ultimately result in less weight given to the survey.

  • The population was properly chosen and defined
  • The sample chosen was representative of that population


  • The questions asked were clear and not leading
  • The data gathered were accurately reported
  • The process was conducted so as to ensure objectivity


  • The data were analyzed in accordance with accepted statistical principles
  • The survey was conducted by qualified persons following proper interview procedures


Below is a top-level view of a survey timeline along with tactics that can be used to meet some of the survey standards mentioned above.

Consumer Survey Timeline

Investigate with Exploratory Research

  • Determine whom to survey
  • Understand what to ask
  • Build hypothesis for quantitative research
  • Develop prior estimates
  • Create a valid context for interpreting findings

Focus on Survey Design and Execution

  • Build in controls
  • Create the most realistic stimuli possible
  • Partner with a reputable sample provider to field survey
  • Assure unbiased data collection

Analyze Data with Care

  • Use scientific statistical standards in analysis
  • Make realistic inferences

To learn more in-depth about survey design considerations and critical issues, watch our webinar-on-demand: Surveys in Trademark Litigation

Survey Benefits

Surveys have the ability to strengthen a case. It offers many advantages compared to using an expert alone and without a survey. Surveys can provide critically needed empirical data on which to base expert opinions.

Advantages include:

  • Opinion is based on empirical data, not anecdotes
  • Brings real-world information into the courtroom
  • Quantitative measurements like number, amount, value, or proposition are more exact and can be used to measure damages

Additional Resources


Have questions about trademark surveys? Contact our experts to discuss.

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