Litigation Surveys Have Special Rules
If your company is naming a new product line, it probably would not be wise to use the “X” letter, as in XFL, X-Men and such X-marked products as Microsoft’s Windows XP system and Nissan’s Xterra model. In fact, last year companies filed 1,000 requests for X-marked trademarks with the U.S. Patent and Trademark Office, says Ternell Kearney at the trademark search firm CCH Corsearch.
As the “X” names demonstrate – in the technology field especially, with its emphasis on tech-sounding prefixes and suffixes – most product names are potentially subject to prior claims. In another example, domain names that simulate known brands or company brands are open to charges of cyber squatting and subsequent damages. As the selection of names is depleted by domain applications, attorneys are filing more lawsuits to protect their clients’ intellectual property rights, and the trademark litigation growing out of this trend calls on the expertise of marketing researchers.
Federal courts are in favor of objective surveys to help determine if conflicts between names result in what is called “likelihood of confusion,” a legal concept meaning that two names are so alike, consumers might think they come from the same source. But surveys employed in litigation are required to meet strict standards.
The minimum standards for surveys in litigation are found in the Manual for Complex Litigations, published by the Federal Judicial Center. They include these criteria:
- The population was properly chosen and defined.
- The sample represented the population.
- The data were accurately reported.
- The data were analyzed against statistical principles.
- The questions asked were clear and not misleading.
- Proper interviewing procedures were followed.
- The process ensured objectivity; for example, the interviewers were not aware of the purpose of the survey.
These standards may be old hat to experienced researchers, but in legal situations, they call for extra-careful analysis. For example, if two companies with different product lines dispute ownership of a name, which company’s customer and prospects should be surveyed? (Typically, but not always, the senior company’s customers are most likely to be confused by the junior company’s use of the similar name.)
