In the Supreme Court decision Jack Daniel’s Properties, Inc. v. VIP Products LLC, the justices paid attention to the use of likelihood of confusion surveys in trademark litigation. This dispute arose from VIP Products’ dog toys, which parodied a Jack Daniel’s whiskey bottle, featuring branding such as “Bad Spaniels” and references to pet behavior. At issue in the dispute were parody and First Amendment protections. A concurring opinion provided instruction on consumer survey evidence in trademark infringement cases.
Survey Reliability in the Sotomayor Concurrence
The concurrence, authored by Justice Sonia Sotomayor and joined by Justice Samuel Alito, cautioned that in cases involving parody, likelihood-of-confusion surveys may reflect consumer misunderstanding of trademark law rather than any actual marketplace confusion.
Justice Sotomayor illustrated this concern by giving verbatim responses from the survey introduced in the Jack Daniel’s litigation, including, “I’m sure the dog toy company that made this toy had to get [Jack Daniel’s] permission and legal rights to essentially copy their product in dog toy form.” “The bottle is mimicked after the Jack Daniel BBQ sauce. So they would hold the patent, you would have to ask permission to use the image.”
Responses reflecting this reasoning could artificially inflate survey results, the concurrence reasoned, even when there is no meaningful likelihood of consumer confusion. Without scrutinizing these results, the lower courts “risk silencing many parodies” and grant trademark owners “an effective veto over mockery,” which should be afforded protection as parody. The concurrence advised courts to assess whether surveys inadvertently prompt confusion about trademark law or fail to control for such effects.
Eveready Surveys and Question Design Implications
The concurrence raised concerns directly related to Eveready survey designs, in which survey questions ask whether the manufacturer of a product had the approval, permission, or authorization of another company. Respondents may provide answers to this type of question that misunderstand trademark law, as Justice Sotomayor’s concurrence pointed out. As a result, even a well-designed Eveready survey that does not depart from typical standards may be scrutinized more closely after the Jack Daniel’s decision.
In that case, the survey methodology and submitted testimony adhered to the recommended approach, and the trial court accepted the survey, contributing to the victory.
Best Practices for Litigation Surveys
Justice Sotomayor’s concurrence directly discusses consumer survey best practices and reinforces the importance of conducting surveys reliably, with proper controls and careful attention to questions and survey structure. All survey questionnaires must avoid manipulation, minimize bias, and comply with precedent and methodological standards to be accepted in high-stakes litigation. The IMS Litigation Surveys and Consumer Science team specializes in designing and executing likelihood-of-confusion surveys that withstand judicial scrutiny and adhere to best-practice survey methodology.
