Leading survey questions

A recent Australian case, Adidas v. Pacific Brands Footwear, included some comments on a standard TM survey question. I find the judge’s point quite provocative; I wonder whether American judges might agree:

[R]elated to my first reason for giving the survey little weight in the sense I have explained, the question “Who do you think makes this shoe?” suggested to the participant that he or she ought be able to discern the origin of the shoe from the photograph and suggested an association to decoration and the origin. I accept the respondent’s submission that the question would lead to an over-attribution of the shoes to leading brands because the participants were asked to nominate a maker based on what was presented to them and to consider a matter which they may not have otherwise done.

I note that when a more general question was put in the pilot survey, “What is your reaction on seeing this shoe?”, the association between the three shoes of Pacific Brands and adidas was very low, being six people out of 300 participants. 

Images of infringing and noninfringing shoes may be found in the opinion.

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