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Abstract

Courts have continually utilized surveys to show evidence of secondary meaning, genericness, dilution, and functionality in trademark litigation. In conducting a trademark survey, an expert must consider various factors that may affect the admissibility of the survey in court, including assuring the correct universe of respondents are questioned, implementing controls, and verifying the results. In light of these considerations, as well as the ever-changing environment of consumer shopping, the manner and mode of survey that a court accepts as appropriate must adapt to these conditions. The use and acceptance of online and computer-based surveys is not currently well received by the courts, but this should change due to the many advantages that on-line surveys offer to trademark litigants. These advantages, including more efficient, accurate and trustworthy results that far outweigh any perceived disadvantages a court may put forth in finding such surveys inadmissible.

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