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If your company is involved in a trademark dispute with another company, you may find yourself considering the use of survey company to either prove or disprove the likelihood that consumers will confuse your brand or product with the other company's brand or product. Here's what you should know about using survey in trademark disputes.

The Surveys Themselves Are Carefully Examined

When the courts evaluate whether or not a survey has any value in showing consumer confusion there is a great deal of attention paid to the surveys themselves. There is no one "standard" type of survey that's used because each situation is unique. That means that the courts will examine each survey presented to see:

• The way that the survey questions are written. Courts want the questions to be clearly understood by the average consumer. That means using everyday language and avoiding complex sentences.
• The people that were surveyed. The courts want to make sure that a representative sample of consumers who are actually interested in the product are questioned.
• The controls used to ensure accuracy. Courts want to make sure that the questions were not leading and the results were accurately reported. Blind controls are often used to prevent bias.

How The Surveys Are Conducted Is Equally Important

The courts will also consider how the surveys were conducted as part of any evaluation of the probative value of the results. One of the biggest things that the courts look at is how well the survey replicates the actual "real world" consumer environment. In other words, how likely is the survey to reflect the actual confusion of a consumer in the purchasing environment?

A common method of survey taking that is often used in trademark disputes is known as the "Mall-Intercept" survey - consumers are literally approached in the actual purchasing environment and questioned about any brand confusion they have.

Because of the rise of disputes involving internet technology and trademarks, a second popular method is to test online consumers with web pages that are designed to replicate their online experiences. Online surveys have also been designed using technology that recreates (as much as possible) the offline consumer environment. Marketplace conditions are replicated by showing a grouping of products together on an electronic "shelf," similar to the way that products would be grouped together in a store.

While consumer surveys aren't required in trademark litigation, they have widespread acceptance and can be highly influential in the decisions that get made. They are probably the most direct method of showing that there is confusion among consumers because of the conflicting trademarks. Because of that, you want to make sure that any survey that you conduct is handled very carefully, usually by a company that specializes in that type of survey taking. 

If you have a strong belief that a properly done consumer survey would prove your position in your trademark dispute case, talk to your attorney about the possibility of using one during litigation. It could end up making your case. To learn more about trademark law, contact Altman & Martin.