Incorporating Uncertainty in Trademark Surveys: Do Respondents Really Know What They Are Talking About?
The Trademark Reporter, December 21, 2023
Following the US Supreme Court’s ruling in United States Patent and Trademark Office, et al. v. Booking.com B.V., Analysis Group academic affiliate Joel Steckel coauthored an article on incorporating data about respondent uncertainty in trademark surveys, published in The Trademark Reporter. In the article, “Incorporating Uncertainty in Trademark Surveys: Do Respondents Really Know What They Are Talking About?” Professor Steckel and his academic colleagues explained that surveys do not typically include measures of the strength of respondents’ beliefs about trademarks and explored whether and how such measurements could be valuable at litigation.
The authors summarized a study that they conducted based on survey responses in connection with a food and beverage genericness dispute. They then discussed how the introduction of a simple uncertainty assessment of responses could have changed the interpretation of the results the survey in that litigation, as well as in other similar cases. The authors also provided an overview of the history trademark survey formats used as evidence and discussed the implications of their findings with an eye toward future questions in trademark law.
The authors concluded by noting that, “Properly designed trademark surveys would provide courts with the information they need to take account of consumer belief strength when designing remedies.”
Analysis Group has worked with Professor Steckel in developing expert surveys testimony in multiple cases, as well as in connection with Professor Steckel’s work designing novel methods to address uncertainty in trademark surveys.
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Authors
Beebe B, Germano R, Sprigman CJ, Steckel JH