Trademark Surveys: An Undulating Path

45 Pages Posted: 9 Jul 2014

Date Written: July 8, 2014


When a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, the pivotal legal question is: how are consumers likely to perceive the mark or advertising? In the early days of trademark litigation, a parade of consumer witnesses, carefully selected by one of the parties to support a trademark claim, would testify about their reactions to a mark. That approach has given way to systematic survey evidence reflecting the responses of a substantial number of consumers selected according to an explicit sampling plan, asked the same questions, and unaware who sponsored the survey.

Some courts have described surveys as the most direct form of evidence that can be offered on the consumer perception questions at issue in trademark and deceptive advertising litigation, but several scholars, relying on reported cases, have questioned the role that surveys actually play in trademark cases. While surveys continue to be highly valued by courts and trademark attorneys, trademark scholars have argued that in practice they rarely influence the outcome of reported trademark cases.

To address this apparent conflict, we surveyed trademark attorneys in the United States and internationally, revealing the publicly invisible uses of surveys that often contribute to resolution without a formal court decision. We show that surveys play a substantial role in convincing parties not to pursue claims or to settle them. In addition, we identify the legal, strategic, and economic reasons why many reported cases do not contain survey evidence, even when they would be useful in evaluating a claim.

Keywords: intellectual property, trademarks, experts, litigation

JEL Classification: K10, K30, K41

Suggested Citation

Seidman Diamond, Shari and Franklyn, David J., Trademark Surveys: An Undulating Path (July 8, 2014). Texas Law Review, Vol. 92, 2014, Northwestern Law & Econ Research Paper No. 14-12, Available at SSRN:

Shari Seidman Diamond (Contact Author)

Northwestern University, School of Law & American Bar Foundation ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-2040 (Phone)

David J. Franklyn

Golden Gate University - School of Law ( email )

536 Mission Street
San Francisco, CA 94105
United States


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