Trademark and Deceptive Advertising Surveys Law, Science, and Design

by Diamond, Shari Seidman; Swann, Jerre B.

• ISBN13: 9781614384748
• ISBN10: 1614384746
• Format: Paperback
• Copyright: 2012-06-01
• Publisher: American Bar Association

Summary

Surveys have become perhaps the standard form of evidence on consumer perception in cases involving trademarks and deceptive advertising. Yet it is far more difficult to produce a well-designed survey than is commonly understood. Trademark and Deceptive Advertising Surveys offers practical tools for recognizing and appreciating good survey methodology and distinguishing valuable evidence from its counterpart.

Focusing on the various issues that trademark surveys address, this compendium discusses a critical design or analysis topic that an attorney who is presenting, defending, or critiquing a survey must deal with. It brings together the viewpoints of academic and legal experts on surveys and survey methodology, combining both theory and practice in a single resource. Using both actual and hypothetical cases, the authors explain how the courts have addressed these issues and offer strategic guidance on how to identify important issues, understand options, and the optimal way the issues should be handled. Topics include the use of surveys in litigation involving trademark and deceptive advertising claims; pilot tests and pretests; selecting the survey universe; various legal questions, ranging from the common issue of likelihood of confusion to secondary meaning, fame and dilution; use of controls, both fundamentals and design issues; responding to survey results; and Internet surveys.

Author Biography

Shari Seidman Diamond is the Howard J. Trienens Professor of Law and Professor of Psychology at Northwestern University in Chicago and a research professor at the American Bar Foundation. She has published more than 100 articles in behavioral science journals and legal publications and has lectured widely to scholarly and judicial audiences. Professor Diamond has testified in American and Canadian courts on trademark surveys and juries and her publications on surveys and juries have been cited by federal and state courts, including the U.S. Supreme Court.
Jerre B. Swann practices intellectual property, antitrust, and trade regulation law at Kilpatrick Townsend in Atlanta. He has served as lead counsel, or special counsel as to survey and expert witness issues, for major brand owners in trademark, false advertising and trade dress actions in judicial districts throughout the United States. He received the INTA President's Award, the Ladas Memorial Award, and the Volunteer Service Award for the Advancement of Trademark Law. He has authored or co-authored more than thirty law review articles and book chapters, and has spoken at more than thirty national and international seminars, on trademark, survey and expert witness subjects.