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Overview
We will be discussing: Surveys in Court Opinions on Trademark Infringement
The very first case the Supreme Court heard by telephone and live streamed online due to the impact of COVID-19 was a trademark registration case in which the Court questioned about how much weight should survey results bear. Surveys results are widely used in trademark-related disputes, but courts in general has mixed views towards the value of surveys. In general courts discourage giving survey result dispositive weight, but courts cannot get around surveys completely as a consumer survey is an inevitable means to capture important issues that is key to a dispute. For instance, if the case is about consumer’s confusion between two trademarks or the confusion over whether a term should be considered a generic term (which cannot be registered as a trademark.) This research aims at reviewing how surveys results are applied in appellate court opinions since the promulgation of the US Trademark law, the Lanham Act in 1946. Preliminary findings suggest an increasing trend of using survey methods in trademark litigations but courts in general has specific preference over the format of surveys being used, for instance, the Teflon survey is an example of widely-accepted surveys in US courts.
