Trademark surveys: An undulating path

Shari Diamond, David J. Franklyn

    Research output: Contribution to journalArticlepeer-review

    8 Scopus citations


    Currently, when a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, proof of consumers' reactions to an advertisement is largely presented through the use of systematic survey evidence. While these surveys can be effective tools, several scholars have questioned the role that these surveys actually play in trademark cases. Using a survey that investigated how attorneys in the United States and internationally use surveys in trademark litigation, Professors Diamond and Franklyn examine the role these surveys play in trademark litigation. In this article, Professors Diamond and Franklyn provide a description of the primary legal topics that appear in trademark and deceptive advertising surveys. They then review the recent studies that investigate the presence and influence of surveys in reported infringement decisions. They examine a sample of cases that did not include survey evidence to assess why surveys are or are not submitted in trademark cases. Finally, they offer an explanation of why surveys may be underrepresented in reported cases, and when surveys succeed and fail as persuasive evidence.

    Original languageEnglish (US)
    Pages (from-to)2029-2073
    Number of pages45
    JournalTexas Law Review
    Issue number7
    StatePublished - 2014

    ASJC Scopus subject areas

    • Law


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