The probative value of a comprehensive trademark survey often
does not justify the cost. Even a relatively inexpensive trademark
survey of modest scope can be of value to a court if it is designed
and conducted fairly, it measures the right issue, its importance
is not overstated and it is only one of a number of pieces of
evidence relied upon.
Given the depth of scientific knowledge and wealth of experience
built up over decades, properly conducted trademark surveys have
the ability to assess the perceptions of selected universes of
consumers with reasonable accuracy. That said, the issue is whether
the probative value of a trademark survey justifies its cost. Not
infrequently, the survey will support the judge's own
common-sense perception – or, if not, the judge will find
ways to reduce its weight or exclude it. This is not a criticism of
surveys – rather an observation of how judges tend to react
to the results of surveys that they disagree with.
