Utilizing Surveys in Trademark Litigation: Your Guide in 2017 and Beyond
Consumer surveys are increasingly being used in trademark infringement cases to establish evidence on the likelihood of genericism, confusion, dilution and secondary meaning. However, surveys are yet another legal tool that should be approached carefully. Attorneys must consider several factors, including the cost, appropriate survey design and certainty in the result to be able to decide how to proceed.
In a LIVE Webcast, a panel of thought leaders and practitioners assembled by The Knowledge Group will discuss how the use of surveys can be a useful tool for attorneys in demonstrating key legal issues in trademark litigation. Speakers will offer best practices for effectively executing surveys to achieve admissible result.
Some of the major topics that will be covered in this course are:
- Advantages of Utilizing Surveys
- Common Applications of Surveys in Litigation
- Key Factors to Consider When Designing a Survey
- Best Practices for Leveraging Surveys
Jeffery A. Stec, Ph.D., Vice President
Charles River Associates
- Elements for a well-designed survey from a Total Survey Error Approach
- Steps in designing a survey
- Planning the survey and identifying its purposes
- Target population – Population properly chosen and defined
- What is the appropriate target population?
- What are the consequences of surveying the wrong target population?
- What is coverage error?
- Sample design – Sample chosen was representative of population
- What is sampling error?
- What is a “statistically significant” sample?
- Nonprobability vs. probability samples
- Survey mode – Mode used was appropriate
- In-person vs. telephone vs. mail vs. Internet – how to choose the right approach
- Questionnaire design – Survey questions clear and not leading
- Well- accepted designs
- Secondary meaning
- Likelihood of confusion
- Testing for different points of confusion
- Initial confusion
- Point of sale confusion
- Post sale confusion
- What is specification error?
- What is measurement error?
- Experimental design principles – use of a control group
- Determination of the stimuli for treatment and control cells
- Well- accepted designs
- Data collection – Data gathered was accurately reported
- What is nonresponse error?
- What is processing error?
- Data analysis – Data analyzed with accepted scientific/statistical principles
- What findings constitutes evidence?
- What is adjustment error?
- Expert report disclosure – Appropriate information was disclosed/appropriate conclusions were drawn
- Disclosure of work product
- What is inferential error?
- Steps in designing a survey
Ronald C. Goodstein, Associate Professor of Marketing
McDonough School of Business, Georgetown University
- Determine when theory backed by empirical data is enough to formulate an expert opinion.
- Determining when primary data are needed to address and infringement claim.
- Discover new techniques that are moving from the research realm into the courtroom: netnographies, webscrapes, two-room studies, and their advantages in trademark investigations.
- Develop a research based approach to rebuttal opinions.
Healey Whitsett, Senior Consultant
NERA Economic Consulting
- Surveys of targeted populations in litigation research: Methods of reaching respondents who can’t be found at a shopping mall or found efficiently / cost-effectively on an internet panel. In-person (intercept), targeted professional panels, river sampling, phone-to-web
- Dynamic control stimuli: Voiceover work, video editing, using/embedding multimedia in online surveys
Who Should Attend:
- Trademark Litigators
- Trademark Attorneys
- IP Consultants and Experts
- In House Counsel
- Corporate Counsel
- Other Related/Interested Professionals
As a Vice President of Charles River Associates, Dr. Stec has worked with clients in the areas of antitrust, finance, intellectual property, and survey research as both a consulting expert and as an expert witness. In the area of economics and damages, Dr. Stec has conducted economic and econometric analyses to determine the value of intellectual property as well as the amount of economic damages resulting from patent infringement claims. In the area of survey research, Dr. Stec has created numerous in-person, telephone, mail, and internet surveys for various clients as well as critically evaluated surveys and survey methodologies in both litigation and non-litigation consulting engagements. He has given presentations and conducted research on survey and damages topics as well testified as an expert on both survey research and economics/damages in state and federal courts, arbitrations, and at the International Trade Commission. Dr. Stec has a Ph.D. and M.A. in economics from the Ohio State University. He also has B.A. degrees in Economics from the University of Illinois – Chicago and in Psychology and Philosophy from Cornell University.
As a Vice President of Charles River Associates, Dr. Stec has worked with clients in the areas of antitrust, finance, …
Professor Goodstein’s executive teaching and consulting are in the areas of customer focus, building and managing brand equity, strategic marketing management and positioning, integrated marketing communications, and consumer behavior. His work has been taught to some of the world’s leading companies, including: Prudential, Microsoft, Dow, CR Bard, Amoco, Shell Oil, HSBC, Credit Suisse, Lexis/Nexis, M&M Mars, Kimberly-Clark, Siemens AG, and many other Fortune 500 firms. He has served as an expert witness in a number of trademark infringement, false advertising, and patent infringement matters, and testified in front of the FTC in an anticompetitive matter involving online search advertising. Professor Goodstein has consulted on social media strategy with firms such as: Dell, Microsoft, Fleishman/Hillard, Baker and MacKenzie, CR Bard, and IBM. He has written articles about the strengths and drawbacks of social marketing (e.g., Trademark Reporter, 2015) and his research on this topic has been published in such prestigious journals as the Journal of Consumer Research, Journal of Marketing Research, Journal of Marketing, Journal of Public Policy & Marketing, and Pricing Strategy and Practice. Dr. Goodstein serves on the editorial boards of the Journal of Consumer Psychology, the Journal of Retailing, Marketing Letters, and the Decision Sciences Journal. He is also on the Board of Advisors for the Institute for Brand Management. He was previously awarded the American Marketing Association of DC’s prestigious “Hall of Fame” award for his marketing teaching and practice in the metropolitan area.
Professor Goodstein’s executive teaching and consulting are in the areas of customer focus, building and managing brand equity, strategic marketing …
Ms. Whitsett is a Senior Consultant based in NERA Economic Consulting’s Washington, DC office. She is an expert in survey research and methodology, statistical sampling and custom data analysis and has applied this expertise across a wide range of consulting projects and litigation cases.
In her survey research work, she has worked extensively on matters involving intellectual property disputes, including trademark, trade dress, and false advertising cases. Her trademark-related work includes designing and conducting studies to measure or establish likelihood of confusion, secondary meaning, genericness, and dilution. She is also experienced with choice-based studies designed to value patented product features.
Ms. Whitsett has also worked on mass torts and antitrust matters, for example conducting surveys to measure characteristics of a proposed class or to evaluate market share for a service. Across her survey work, she is experienced in collecting data by telephone, internet, and via in-person intercept studies of both general population audiences and specialized, difficult-to-reach individuals. Her expertise also extends to evaluating or critiquing surveys and other market research, including qualitative research such as focus groups.
In addition, she has worked extensively with large, complex data files. She has developed sampling frames using large databases containing workers’ compensation records, health insurance transactions, views of internet videos, and various types of claims data. She is experienced in techniques for properly calculating estimates from probability samples including ratio estimation, replicate weights, and bootstrapping.
Prior to joining NERA, Ms. Whitsett worked in survey methodology in both the non-profit and government contracting worlds.
Ms. Whitsett is a Senior Consultant based in NERA Economic Consulting’s Washington, DC office. She is an expert in survey …
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Method of Presentation:
Experience in intellectual property law
NASBA Field of Study:
Specialized Knowledge - Technical
NY Category of CLE Credit:
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About Charles River Associates
Founded in 1965, Charles River Associates is a leading consulting firm that provides economic, financial, and strategic analysis of IP issues. Headquartered in Boston, the firm has offices internationally. CRA uses a combination of industry experience and rigorous, fact-based analysis in order to provide clients with clear, implementable solutions to complex business problems. Whether you are making a critical IP strategy decision or assessing risk in high-stakes IP litigation, CRA’s intellectual property experts offer deep industry specialization, broad cross-functional expertise, and a proven analytical approach.
About Analysis Group
Analysis Group is one of the largest private economics consulting firms, with more than 800 professionals across 13 offices in North America, Europe, and Asia. Since 1981, we have provided expertise in economics, finance, health care analytics, and strategy to top law firms, Fortune Global 500 companies, and government agencies worldwide. Our internal experts, together with our network of affiliated experts from academia, industry, and government, offer our clients exceptional breadth and depth of expertise.
About NERA Economic Consulting
With offices across North America, Europe, and Asia Pacific, NERA is widely recognized as a leading global provider of expertise in intellectual property economics. Our deep understanding of markets across industries and regulatory environments where IP plays a role enables our consultants to provide accurate, independent, and thorough analysis to law firms and companies around the world.
NERA experts apply rigorous economic analysis in IP disputes to determine damages in connection with infringement and breach-of-contract claims involving patents, trademarks, copyrights, and trade secrets, and to address issues such as irreparable harm, the commercial success of a patent, and the impact of claimed false or misleading advertising.
Our valuation consultants value IP in connection with selling or licensing negotiations, preparing required transfer pricing documentation, obtaining advance approval from a tax authority for the price of a particular trade flow or resolving a tax controversy. We help our clients identify portions of their IP portfolios that have value, develop strategies to manage risk, and use their IP for strategic advantage in the marketplace.