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  • Writer's pictureDavid Baker

Surveys Says ...

In a recent article (“New Survey Methods Address Consumer Uncertainty in Trademark Law”) featured on Gene Quinn’s popular IP Watchdog blog, Joel Steckel & Anne Cai & Helene Rowland discuss a unique approach to the tried-and-true method of determining whether or not similar trademarks cause consumer confusion.

More specifically, they have conducted study entitled “The Role of Consumer Uncertainty in Trademark Law: An Experimental and Theoretical Investigation,” and explain that,

“Decades of trademark litigation cases have relied on survey evidence that aims to assess what consumers in the marketplace subjectively believe to be true. These methods are intended to answer important trademark questions, including whether consumers believe a mark to be a common term or a brand name and whether consumers mistakenly believe a product bearing a defendant’s mark originates from the plaintiff. While survey and marketing experts often rely on versions of commonly used trademark surveys (e.g., Teflon, Thermos, Eveready and Squirt formats), these formats in their conventional design may, in some situations, mask critical information about consumers’ beliefs or attitudes that could change the research conclusions — the strength or certainty of those beliefs or attitudes.

Take, for example, the Teflon survey format often used in genericism cases. The format relies on a predetermined binary measurement: is the term a common name, or is the term a brand name? Although the questions may include “other” or “don’t know/unsure” answer options, respondents who select “common name” or “brand name” may have varying degrees of certainty in their belief, which the conventional Teflon format does not allow respondents to express. Without evaluating the strength with which respondents hold a particular belief, such as via a scale, the standard binary measurement can only answer the conventional question of whether a substantial majority of respondents indicated a belief that a term is a common name — even though those respondents may only hold that belief weakly.

Including measures of consumers’ belief strength or certainty can change the results of a survey and the conclusions drawn by the survey and marketing experts. Recent academic research by a New York University research team (Professors Barton Beebe, Christopher Sprigman, Joel Steckel, and Roy Germano) proposes modifications to the conventional trademark survey formats that would allow researchers to expand from simply testing whether consumers hold a particular belief to evaluating, in addition, the strength or certainty of their belief.”

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