When there is a trademark infringement dispute, trademark holders may want to measure likelihood of confusion, secondary meaning, dilution of the brand, fame, or whether the brand is generic. Trademark infringement cases have a wide variety of issues. I defer the questions of law to the intellectual property lawyers. As a survey expert, my voice speaks to the survey design, collection of data, and opinions from the survey evidence.

While constraints exist from case precedents regarding admissibility of consumer survey evidence, there is still an art of creativity in survey research design.

A Pilot Survey is a Stepping Stone

A pilot survey is the first step in data collection. It is recommended that a test of survey methods collects a small sample before you proceed directly to a full study. A well-designed, or properly designed, survey is expertly reviewed before you collect data from the consumer universe or national population (for measuring fame or genericness.) The survey expert edits the survey questions, the product or service illustrations, and tests the survey links ad nauseam before launching the pilot survey.

Given the survey is working properly, it is desirable to run the full study contiguous with the pilot. Postponing the full study after collecting the pilot data introduces time bias. For example, you run the pilot survey on a trademark case for a toilet paper brand and see potential indicators that a competing brand is infringing. If you delay running the full study and an intervening variable occurs such as the corona virus pandemic, then your original pilot data subset may differ from the subsequent dataset because of the Covid19 intervening variable and the hysteria regarding shortage of toilet paper.

Use Your Survey Expert Wisely

A consumer study is designed with the plan of completing a full study and if the design is carefully crafted, the expert folds the pilot data into the full study. If the pilot study indicates the survey evidence is in the wrong direction to prove your case, the expert is not disclosed. If the survey evidence is not in your favor, the pilot test costs less than a full study since the quick analysis of the data limits the expert’s engagement to just the pilot survey.

A credible consumer survey expert understands consumer behavior and/or social science methods, including measurement bias and demand characteristics. Survey experts can save time and money when designing a survey and testing a case when familiar with the specific formats and the best match to your case. A good expert considers the type of product or service, the type of consumers, whether there are geographic limitations, how the product or service is marketed to the consumer and the type of product packaging to create an accurate survey tool.

Lawyers designate an expert that takes the study from point A (designing the survey) to point B (gathering sufficient evidence to take to trial). You want the survey expert who properly foresees methodological issues in the survey design from the outset. Survey research costs more when you need to engage a subsequent untainted expert. Crafting a survey that uses the right methods and assesses the correct universe for the case issues, will cost you less, when you get it right the first time. It is the brand that you are protecting when you begin a pilot test.

It is crucial that the pilot test is carefully crafted. Like Hamilton, “I’m not throwing away my shot!”