Surveys have become a routine form of evidence for courts in cases involving trademarks and deceptive advertising. Although it may appear simple to design a survey (don’t you simply write some questions and have consumers answer them?), surveys for litigation require specialized expertise. Probative surveys for litigation will be carefully tailored to test the legal concepts at issue whether it be likelihood of confusion, secondary meaning, genericism, deception, fame, deceptive advertising, or class action.
Regardless of the legal issue being addressed, surveys used in litigation must adhere to valid and reliable scientific standards because they are subject to critique from both judges, who have the responsibility to keep “junk science” out of the courtroom, and rebuttal experts whose job is to look for and identify flaws. Hiring a survey expert that specializes in surveys for litigation will ensure that your survey is carefully designed and executed and that the resulting data have been analyzed using appropriate techniques. Below are few considerations that survey experts must carefully weigh when designing a survey for litigation.
Defining the relevant universe: Asking the right people
A critical consideration when designing a survey for litigation is the definition of the survey universe or population. It is important to survey those whose perceptions and state of mind are relevant to the issues in the case. Furthermore, universe definitions may vary based on the legal issue being addressed in the case. For example, the relevant universe for measuring fame varies from the relevant universe for measuring secondary meaning. In fact, the relevant universe may vary substantially depending on whether a survey is testing forward confusion or reverse confusion.
Even figuring out whose perceptions and state of mind are relevant may require careful consideration in some circumstances. Consider, for example, a scenario when the person who ultimately pays for a home improvement item, such as a new kitchen sink, is the homeowner and end user, but the actual purchaser is the home decorator who specified, selected, and physically purchased the sink. Whose state of the mind is most relevant: the homeowner or the decorator? This choice of universe may very well determine whether the survey is criticized and afforded little weight, or worse, deemed inadmissible.
The survey: Asking the right questions
Careful consideration must also be given to crafting survey questions. Like universe, which questions are appropriate will vary depending on the legal issue being addressed in the case. Every word in a survey has the potential to influence how a respondent interprets and responds to the question. As such, it is imperative that nonessential information be omitted and that careful consideration be given to each word to minimize any possible bias.