One of the more interesting aspects of market research is the use of surveys to create and refute evidence in intellectual property legal cases — in particular, cases involving trademarks.

As our society becomes more and more service- and brand-oriented, the value of intellectual property focused on such services and brands becomes far more valuable and subject to infringement. Adding to this complexity is the emergence of the Internet with its Websites and search engines. Cyberspace has become a leading delivery system in communicating services and brands. Unlike the offline world, rules, laws and protocols in the cyber environment are evolving as we speak. Because of the need to prove such alleged off-line and on-line service, brand and trademark infringement have actually taken place or are likely to take place, the survey process has evolved into a leading legal tool to prove of disprove these hypothetical infringements.

The use of surveys by intellectual property attorneys is a relatively new phenomenon. Early surveys dealt mainly with real products and focused on pure brand/trademark infringements, trade dress (packaging and product appearance) infringements and the concept of acquired distinctiveness (secondary meaning). Surveys often took the form of mall intercepts, telephone interviews and sometime the pre-recruit form where appropriate targets were contacted in advance and invited to a survey center for interviews. While these forms and protocols continue to be used, the Internet has provided an entire new dimension. Moreover, people are being bombarded in far greater degrees, with unwanted marketing messages in the form of junk mail, Internet spam, telemarketing solicitations and media advertising. Such increasingly high noise levels turn consumers off to participation in research and sharing their opinions. Thus, the process of obtaining information through surveys has become more difficult and challenging.

Adding to this complexity is the increasing use of the “Daubert motion” as a means, more often a ploy, — to attempt to disqualify experts and their findings.

However, despite the constraints and obstacles, I find doing these surveys — creating and critiquing them — to be fascinating and challenging work. To take complex problems dealing with consumers opinions and perceptions and fashion ways to prove or disprove complex hypotheses can be exhilarating.

It is for this reason that I have created this blog. As a lifelong student and 25-year teacher of marketing principles and strategies, I find the study of these surveys, the methodologies of the experts, points and counterpoints of the argumentative process to be both educational and entertaining.

The purpose of this blog is to capture the essence of several rather interesting cases strictly from the ways surveys and survey experts were used by plaintiffs and defendants. My analysis is purely subjective and focused on the survey-related elements of the cases. However, as a former newspaper reporter, I have tried to journalistically present the facts in an objective manner. The format that I will use is:

1. Present the basic issue of the case.
2. Explain how survey experts were used.
3. Report on survey results.
4. Explain rebuttal arguments from adversarial experts.
5. Report on the resolution of the matter.
6. Offer my subjective opinion of the process and results.