Courts are likely to accept consumer survey evidence in trademark infringement disputes when the research is properly designed and documented and supported by reliable methodology. A decision from the U.S. Court of Appeals for the Tenth Circuit illustrated the importance of methodological disclosure in survey research, in a case in which Dr. Justin Anderson, managing director on the Litigation Surveys and Consumer Science team at IMS Legal Strategies, was retained to rebut survey evidence. The appellate court affirmed the district court’s decision to exclude the opposing expert’s opinions.
Case Background
The dispute involved Elevate Credit Union in Utah and Elevations Credit Union in Colorado. Elevate Credit Union rebranded from Box Elder Credit Union in 2019 and registered its new trademarks with the state of Utah. Before completing the rebrand, the organization conducted research pertaining to potential conflicts, including inquiries with the National Credit Union Administration and the US on potential conflicts, including inquiries to on potential conflicts, including inquiries to the National Credit Union Administration and the US Patent and Trademark Office.
Elevations Credit Union became aware of the rebranding effort and issued a cease-and-desist letter, arguing that the similarity between the names could result in consumer confusion. At that point, Elevate had already invested in public announcements, marketing materials, website updates, and newly issued credit and debit cards.
Elevate subsequently filed an action in the US District Court for the District of Utah seeking a declaratory judgment of non-infringement. Elevations counterclaimed for trademark infringement and retained a survey expert to measure the likelihood of confusion between the two names. Elevate retained Dr. Anderson to rebut the survey evidence.
The district court ultimately excluded the opposing expert’s survey testimony, pointing to concerns Dr. Anderson raised that related to reliability and disclosure. The Tenth Circuit affirmed that decision on appeal, agreeing that the survey evidence was flawed.
Market Proximity and Survey Design
The opposing expert relied on a likelihood of confusion survey designed in the Squirt format, a method used when competing marks appear in close proximity in the marketplace. Demonstrating proximity is an important step in determining whether this type of survey is appropriate. The two credit unions operated in different geographic regions, and the survey expert attempted to establish marketplace proximity by citing search results showing the two organizations appearing together online.
The court determined that the expert failed to provide adequate documentation of searches. Aside from two examples, the expert did not retain records of the search terms used, the dates of the searches, the search engine used, the hardware involved, or the results generated. The district court found that this information was central to the expert’s opinion on marketplace proximity and should have been disclosed in the expert report under federal rules governing expert testimony.
Documentation in Survey Evidence
The district court wrote that the absent information was not a minor detail. Because the searches formed part of the basis for selecting the survey methodology, the lack of documentation raised concerns regarding reliability and transparency. The appellate court affirmed the district court’s exclusion of the survey evidence.
Survey experts and attorneys who rely on them must thoroughly document and disclose research methods. When experts rely on market observations, search results, or other supporting research, courts expect records showing how that information was gathered.
Consumer Survey Research in Trademark Litigation
Courts expect consumer surveys’ methodology and supporting information to withstand scrutiny. Documentation, clear reporting, and transparent research practices are foundations of reliable survey evidence. The survey experts at IMS Legal Strategies are authorities on consumer survey research and design, and conduct research used in trademark litigation, including likelihood of confusion surveys and survey rebuttals.
Contact IMS for reliable consumer survey research for trademark litigation.
