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Abstract
In trademark infringement cases, surveys serve an important evidentiary role in the likelihood-of-confusion analysis. Far too often, however, surveys are excluded due to flaws in methodology at the great expense of the survey's proponent. This article by Hazel Mae B. Pangan of Gordon & Rees, LLP, examines various court decisions regarding the admissibility of likelihood-of-confusion surveys and highlights features leading to a survey's success or demise. The admissibility of a survey and selection of a proper survey format depend on the survey's approximation of the actual marketplace conditions in which the products or services at issue are encountered by consumers as measured by various parameters. Importantly, the unpredictability of consumer behavior on the Internet makes selection of a survey for products or services sold online particularly challenging, and trademark litigants should be mindful of case law admonishing a survey's artificial restriction of such behavior. [PUBLICATION ABSTRACT]