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An Expert Witness Shares Insights on Trademark Surveys

As previewed yesterday, Graham & Dunn hosted an INTA roundtable on “Survey Evidence in Trademark Disputes.” We did things a bit differently than usual — we invited a testifying expert witness to speak. Deborah Jay, Ph.D., from the Field Research Corporation shared practical thoughts with the 15 trademark practitioners who attended.

Here are a few items of interest:

  • It costs in the range of $75k to $100k through a survey expert’s report (for a likelihood of confusion survey).
  • The expert will usually know if the survey will assist the litigation (i.e., whether it will deliver a helpful conclusion) after about $25k worth of work.
  • If the attorney doesn’t get the results they want, they can terminate the survey and start over with a new expert. The terminated survey shouldn’t be discoverable since it is the work of a non-testifying expert.
  • Giving an expert eight weeks of lead time to design and conduct the survey builds in time to start over if needed. However, some surveys can be done very quickly if necessary (i.e., within a few days).
  • An expert’s critique of an opposing party’s survey costs in the range of $10k to $30k.
  • Flaws generally do not lead to a survey’s exclusion; rather, they tend to diminish its weight.
  • The most common reasons for exclusion are the use of leading questions and surveying the wrong universe of consumers (e.g., only surveying consumers in Seattle to determine consumer attitudes throughout Washington).

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