Consumer surveys for trademark infringement cases can be a powerful and persuasive piece of evidence. However, a failure to follow accepted survey standards opens up a survey to criticism which may ultimately result in less weight given to the survey. The recent Alzheimer’s Disease and Related Disorders Association, Inc. v. Alzheimer’s Foundation of America, Inc. case illustrates the importance of selecting a proper control and the consequences of failing to do so.
As early as 2007, the two Alzheimer’s charities began suing each other. In the most recent case, Alzheimer’s Disease and Related Disorders Association, Inc. (hereafter “Alzheimer’s Association”) alleged that Alzheimer’s Foundation of America, Inc.’s (hereafter “Alzheimer’s Foundation”) use of the phrase Alzheimer’s Foundation in advertising was likely to cause confusion. In addition, the Alzheimer’s Association alleged that the Alzheimer’s Foundation’s purchase of Alzheimer Association owned trademarks from search engine providers constituted trademark infringement.
In assessing likelihood of confusion, the court applied the traditional Polaroid Factors, one of which is actual confusion. Among other evidence submitted to establish actual confusion, the Alzheimer’s Association presented survey evidence in the form of two studies, as well as, the opinion of an experienced expert. The Alzheimer’s Foundation did not challenge the expert’s credentials, but instead enlisted its own rebuttal expert to review and provide opinions regarding the submitted surveys and conclusions drawn from such surveys. Among various criticisms, the Court concentrated mainly on the rebuttal expert’s argument that the control choice for each study artificially inflated the net confusion numbers. In essence, the net confusion numbers were artificially inflated due to the failure to follow accepted survey principles which specify that a control stimulus should “share as many characteristics of the test stimulus as possible, with the key exception being the characteristics whose influence is being assessed.”
While none of the rebuttal expert’s criticisms of the Alzheimer Association’s studies were sufficient to render them inadmissible, the Court stated that rebuttal expert’s persuasive testimony created serious reservation in assigning substantial weight to either survey. More specifically, the Court found that although the surveys might have “allowed the Court to make informed inferences about the existence of actual confusion, … the problems with the studies’ controls, in particular, were too severe for the Court to place great weight in the results.” Ultimately the Court held that the flaws in the two surveys “indicate that the opinion and conclusions formed based on the studies should be accorded minimal weight.”
As stated above, this is a case that illustrates the importance of selecting a proper control. This case also demonstrates that hiring a rebuttal trademark expert can be persuasive tool in casting doubt on opposing party surveys.