The Use of Surveys in Lanham Act Cases

• Date: 01 September 2023
• Author: Animesh Giri and Steven Herscovici

Published in Landslide, Volume 16, Number 1, 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the

American Bar Association.

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The Use of Surveys in

Lanham Act Cases

Animesh Giri and

Steven Herscovici

Survey evidence has proved dispositive in several areas of legal

disputes, including class-action lawsuits, intellectual property

(IP) disputes, antitrust cases, and Lanham Act cases.

1

This

article focuses on how survey evidence can provide insights into

evaluating the impact of claims in Lanham Act cases while also

highlighting related challenges. This article does not provide an

exhaustive list of the survey issues, nor does it intend to discuss

a comprehensive list of best practices for conducting a survey—a

topic that other authors have discussed extensively.2

Lanham Act claims can be classied into three different types:

(1) claims pertaining to trademarks or trade dress infringement,

(2) claims pertaining to comparative advertising, and (3) all other

claims pertaining to misrepresentations in advertising. Although

these categories are not exhaustive of the types of claims that arise

in Lanham Act cases, they provide a convenient way to describe

different scenarios in which survey methodology can inform on

issues of liability and economic damages.

Properly designed and implemented surveys can provide

strong evidence of whether a disputed claim is confusing to

consumers. For cases involving trademarks and trade dress

infringement, surveys can additionally inform on the strength and

recognition of a mark. The utility of surveys in claims pertaining

to comparative advertising can be nuanced. For statements that

are literally true, courts generally do not nd survey evidence

that consumers misunderstand the statements to be dispositive.

However, survey evidence can inform a fact nder whether those

statements are likely to mislead consumers. Finally, in Lanham

Act cases involving false advertising more generally—when the

issue of materiality is relevant—surveys can help answer the all-

important so what question.

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