--- title: For Want of a Survey... description: A recently decided case between Pods and UHaul demonstrated how a lack of survey evidence can weaken claims that a mark is generic. --- #### [![ams-litigation-new-logo](https://blog.ams-litigation.com/hubfs/ams-litigation-new-logo.svg)](https://ams-litigation.com) - [Home](https://ams-litigation.com/) - [Services](https://ams-litigation.com/services/) - [Trademark Surveys](https://ams-litigation.com/services/trademark-surveys/) - [Likelihood of Confusion](https://ams-litigation.com/services/trademark-surveys/likelihood-of-confusion/) - [Dilution](https://ams-litigation.com/services/trademark-surveys/dilution/) - [Secondary Meaning](https://ams-litigation.com/services/trademark-surveys/secondary-meaning/) - [Genericness](https://ams-litigation.com/services/trademark-surveys/genericness/) - [Deceptive Advertising Surveys](https://ams-litigation.com/services/deceptive-advertising-surveys/) - [Class Action Surveys](https://ams-litigation.com/services/class-action-surveys/) - [Claim Substantiation Surveys](https://ams-litigation.com/services/claim-substantiation-surveys/) - [Patent Infringement Surveys](https://ams-litigation.com/services/patent-infringement-surveys/) - [Content Analysis](https://ams-litigation.com/services/content-analysis/) - [Antitrust Surveys](https://ams-litigation.com/services/antitrust-surveys/) - [Rebuttal Surveys and Reports](https://ams-litigation.com/services/rebuttals/) - Experts and Staff - [Survey Experts](https://ams-litigation.com/survey-experts/) - [Staff](https://ams-litigation.com/staff/) - Knowledge Center - [Case Studies](https://ams-litigation.com/case-studies/) - [Webinars](https://ams-litigation.com/webinars/) - [FAQ](https://ams-litigation.com/faq/) - [Resource](https://ams-litigation.com/resource-guides/) - [Blog](https://ams-litigation.com/blog/) - Join Us - [Why Work at AMS](https://www.ams-inc.com/why-work-at-ams/) - [Roles and Career Paths](https://www.ams-inc.com/roles-and-career-paths/) - [Contact Us](https://ams-litigation.com/contact-us/) ![banner Image](https://blog.ams-litigation.com/hubfs/AMS-Dec2017/Images/banner%201.jpg) - [Home](https://ams-litigation.com/) - » - [Blog](https://blog.ams-litigation.com) - » - For Want of a Survey... # For Want of a Survey... A recently decided case in the Middle District of Florida (*Pods Enterprises v. U-Haul International*) showed how the lack of survey evidence can seriously weaken a claim that a trademark is generic. Pods sued U-Haul for infringement of its federally registered “PODS” mark for containers used in the storage and transportation of goods and in moving and storage services. U-Haul asserted several defenses including that the “PODS” marks were generic and ineligible for trademark protection. The jury disagreed. U-Haul presented a lot of evidence including dictionary definitions, industry witnesses, and testimony by an expert linguist. But what they did not provide was any survey evidence that would show how the mark was perceived by customers. “Consumer surveys have become almost de rigueur in litigation over genericness. Judges are now used to survey evidence and often expect to receive evidentiary assistance by surveys in resolving generic disputes. A litigant who alleges that a designation is not a valid trademark because it is perceived as a generic name of a product or service and does not introduce a survey to support this challenge may be viewed as less than serious by some judges.” [1](https://blog.ams-litigation.com/for-want-of-a-survey#footnote1) Surveys to determine genericness can take many forms, but what they all have in common is the ability to determine the primary significance of the mark to the relevant public. In this case, however, U-Haul presented no survey and so the jury—who were a very small sample and were, by the end of the trial were uniquely knowledgeable—used their own judgment in place of the survey that U-Haul could have submitted. It is unknown (at least by me) whether or not a survey would have supported U-Haul’s position or been persuasive to the jury. What is known is that no survey was presented. So, for the want of a survey… [Trademark](https://blog.ams-litigation.com/tag/trademark) Share this: Previous Next ### SUBSCRIBE TO OUR BLOG ### Categories - [Trademark (59)](https://blog.ams-litigation.com/tag/trademark) - [News (28)](https://blog.ams-litigation.com/tag/news) - [Conference (23)](https://blog.ams-litigation.com/tag/conference) - [Conjoint Analysis (20)](https://blog.ams-litigation.com/tag/conjoint-analysis) - [Deceptive Advertising (18)](https://blog.ams-litigation.com/tag/deceptive-advertising) - [False Advertising (18)](https://blog.ams-litigation.com/tag/false-advertising) - [Likelihood of Confusion (17)](https://blog.ams-litigation.com/tag/likelihood-of-confusion) ### Applied Marketing Science Founded in 1989 with roots in the MIT Sloan School of Management, Applied Marketing Science is a market research and consulting firm with an established practice focused on consumer surveys for litigation. ### Join Our Mailing List By submitting your information you agree to receive electronic communications from AMS. You may unsubscribe at any time. ### Recent Posts ### Contact Us Applied Marketing Science 78 Blanchard Road, Suite 203 Burlington MA 01803   Phone: [781.250.6300](callto://17812506300) Email: [litigation@ams-inc.com](mailto:litigation@ams-inc.com) [AMS Corporate Site](http://www.ams-inc.com) ©2023 Applied Marketing Science, Inc. | [Sitemap](https://ams-litigation.com/sitemap_index.xml) | [Terms of Use](https://ams-litigation.com/terms-of-use/) | [Privacy Policy](https://ams-litigation.com/privacy-policy) - - ```json { "@context" : "https://schema.org", "@type" : "BlogPosting", "author" : { "@type" : "Person", "name" : "Robert Klein", "url" : "https://blog.ams-litigation.com/author/robert-klein" }, "datePublished" : "2015-03-20T16:06:26.000Z", "headline" : "For Want of a Survey...", "mainEntityOfPage" : { "@id" : "https://blog.ams-litigation.com/for-want-of-a-survey", "@type" : "WebPage" }, "publisher" : { "@type" : "Organization", "logo" : { "@type" : "ImageObject", "url" : "https://blog.ams-litigation.com/hubfs/Applied-Marketing-Science-Litigation-Survey-Experts-2.jpg" }, "name" : "Applied Marketing Science" } } ```