It is every company’s worst nightmare. After carefully registering a trademark for your flagship product or service, a rival comes along and chooses a dangerously similar name for their competing offering. You may believe that their infringing use of your protected mark is creating confusion in the marketplace and costing you sales, but how do you prove it in a way that will hold up in court? Traditionally, attorneys have turned to consumer surveys to prove consumer confusion caused by infringement. Survey methodology was basically unchanged for decades:  your attorneys might hire a company to conduct in-person surveys at malls or randomly select names out of the white pages for a telephone survey. The relatively recent widespread adoption of the internet has created a third option that is rapidly gaining traction in federal courts:  online consumer surveys.

In an online consumer survey, participants are invited to complete a questionnaire via email, website pop-ups, or even direct mail with a link to the survey. The questions are generated by a programmed back-end, which randomizes responses, and selects control groups to ensure that the survey design does not influence the results. The programming is not visible to the participants, who answer the questions by using their mouse or keyboard to select or type out their responses to the questions as they appear.

Significant changes in the way we communicate are making online surveys more attractive than ever before. According to the most recent CDC data, 30% of American homes do not have a landline phone at all, relying solely on their cell phones for calls. If you look at young adults between the ages of 25 and 29, that figure goes up to 53%. Traditional surveys that rely on calls to landline telephones miss between a third and one-half of the population, a risk that may raise challenges when the results are offered in court. A popular alternative, mall intercept surveys, raises similar sample population issues, and is relatively expensive, relying on paid survey takers to stand around soliciting volunteers for weeks in order to obtain a sufficient sample size. In contrast, at least 79% of Americans are regular internet users. Online surveys can be active 24/7, and are administered by a computer to ensure consistency.

Although many marketing departments may have experience with consumer surveys, their methodologies are frequently informal, and may not survive rigorous judicial scrutiny. If crafted with litigation in mind, an online survey provides control groups and relevant population sample sets that improve reliability, accuracy, and objectivity, exactly the criteria the survey will need to demonstrate at trial to be admitted into evidence.

The Federal Court for the District of Minnesota recently accepted online consumer survey data as a measure of trademark confusion in 3M Co. v. Mohan, Civ. No. 09-1413 (D. Minn. 2010). In that case, 3M commissioned an online survey to prove that a stethoscope with a stylized “K” created consumer confusion with their trademark of a stylized “L” on Littmann brand stethoscopes. Noting that the survey took care to only select doctors and nurses that were likely purchasers of the competing products, and that a control group was used to account for “noise” in the sampling data, the court held that the survey results “strongly favor likelihood of confusion.”

In contrast, a poorly designed survey will have methodological holes that allow an experienced attorney to challenge the results. At best, this could cause the jury to doubt the accuracy of the survey findings, at worst, it may allow the court to exclude the results from evidence altogether. For example, in Maker’s Mark Distillery, Inc. v. Diageo North America, Inc., 703 F. Supp. 2d 671 (W.D. Ky. 2010), the court described the defendant’s survey results as “neither useful nor persuasive” because they failed to replicate the real-life environment in which a consumer would encounter the relevant trademarks, structured their questions in a way that was overly suggestive, and failed to utilize an effective control group. In a typical marketing survey, used for internal company research, these criticisms may not have been an issue. At trial, however, they prevented the defendant from establishing a key element of its defense.