Testing the Admissibility of Trademark Surveys after Daubert

Abstract

To be admissible in court, a trademark survey must apply the principles of survey research to the target population in a reliable manner, and base its results upon sufficient interviews and responses. These requirements make clear that the existence of flaws in a survey is not simply a matter of weight to be resolved by the fact finder, but an issue of admissibility that must be resolved by the courts as part of their gate-keeping duties.

This article applies the doctrines of Daubert v. Merrell Dow to the test for the admissibility of trademark surveys, and discusses the main issues in the design and execution of trademark surveys.

Keywords: trademarks, surveys, admissibility, Evidence, Daubert, Kumho, Rule 702