Category Archives: surveys

ANA conference: surveys

What Do Consumers Think? Using Online Surveys To Demonstrate Implied Claims   David G. Mallen, Co-Chair, Advertising Disputes, Loeb & Loeb LLP: NAD now forum of choice for many ad challenges, especially since the standard of proof is different for … Continue reading

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None but Bob Marley’s heirs can free our minds

Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., — F.3d —-, 2015 WL 728031, No. 12–17502 (9th Cir. Feb. 20, 2015)   Despite being a plaintiff victory, there’s a fair amount in here that might hearten opponents of a generalized … Continue reading

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PTO descriptiveness finding inadmissible where court ruled mark suggestive

Innovation Ventures, LLC v. NVE, Inc., 2015 WL 871137, No. 08–11867 (E.D. Mich. Feb. 27, 2015)   Various evidentiary rulings in the latest round of this trademark/false advertising case over energy shots, the first of which presages what I expect … Continue reading

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consumer survey on patent value admissible despite serious flaws

Sentius Int’l, LLC v. Microsoft Corp., No. 5:13-cv-00825, 2015 WL 331939 (N.D. Cal. Jan. 23, 2015) (magistrate judge)   A little different today: this is a survey in a patent case trying to determine the value of a patented feature … Continue reading

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It’s all about control: how to get a survey excluded

First Data Merchant Services Corp. v. SecurityMetrics, Inc., No. RDB–12–2568, 2014 WL 6871581 (D. Md. Dec. 3, 2014) This is a motion to exclude in a false advertising/antitrust case. “This origins of this contentious case lie in a soured business … Continue reading

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Empirical IP Research Conference: trademarks

Plenary Session: Measuring Consumer Confusion in Trademark Infringement Facilitator: Barton Beebe (NYU) Lanham Act: confusion is vaguely defined.  Used to include “purchasers” but Congress deleted that phrase.  43(a)’s language is even broader.  Flexible and slippery. Panelists: Joel Steckel (NYU Stern … Continue reading

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A little more than kin: prominent house mark overcomes weak evidence of confusion

KIND LLC v. Clif Bar & Co., 2014 WL 2619817, No. 14 Civ. 770 (S.D.N.Y. June 12, 2014) KIND sought a preliminary injunction against Clif Bar’s new trade dress for its MOJO bars; the court denied the motion.  KIND defines … Continue reading

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Reading list: TM/false advertising surveys

Trademark and Deceptive Advertising Surveys: Law, Science, and Design (ed. Shari Seidman Diamond & Jerre B. Swann, 2012): A collection of essays surveying various aspects of the law and offering the authors’ opinions on those aspects.  Of particular note: Itmar … Continue reading

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UK Court of Appeals rejects survey evidence in TM case, again

Marks & Clerk report on this latest instance, noting the effect of deprecating surveys on limiting the costs of litigation, which is extremely important in a loser-pays system.  High court opinion in Zee v. Zeebox; IPKat discussion of appeal; I haven’t … Continue reading

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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 … Continue reading

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