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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

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…