Guidelines for Conducting IP Surveys for Litigation
As use of surveys in intellectual property and business torts litigation increases, a heavy burden is placed on lawyers to conduct surveys tailored to support their clients’ positions.
Likelihood of confusion, genericness and secondary meaning are still the typical issues that call for survey applications. But surveys are also being called into play for such challenges as attempting to diminish potential damages related to the loss of a case.
According to a December 1997 survey of IP attorneys in Texas, 25 percent of the responding lawyers said they had used surveys in the past 12 months in litigation and 63 percent said they expected their use of surveys to increase over the next five years.
Most of us are accustomed to surveys, such as presidential polls, where it is clear who needs to be interviewed. In the case of political campaigns, it is registered voters. In surveys for corporations, the target population is their customers or prospective customers. But in the legal arena, the relevant population is considerably murkier. It is important to stress that legal surveys are strikingly different from political or commercial surveys.
For example, in trademark surveys, it is the junior or senior users’ customers who are to be interviewed – and how do you get a list of customers from the opposing sides? This is just one of the vexing issues that need to be appreciated and resolved by both the researcher and her retaining attorney.
Further, surveys to estimate damages may need to go back in time to when the transgression allegedly began. Commercial surveys are straightforward in their time horizon, typically probing the respondent’s present state of mind.
Read Ask Away – The Right Way.
