We've previously discussed some of the challenges of
obtaining quality consumer survey evidence in trademark litigation
in past posts, such as
here and
here. The persuasiveness and wisdom of a consumer survey was
once again called into question, this time by the Federal Circuit
in its October 30 opinion in Converse's long-running trademark
litigation against Skechers, New Balance, and others. The appeals
court identified a "series of errors" requiring remand,
including that the International Trade Commission applied incorrect
standards to both invalidity and infringement and erred in its
secondary meaning analysis.
The case, which has been closely watched by trademark
practitioners, started when Conversed filed a complaint in 2014 in
the ITC alleging infringement of Converse's trade dress in the
midsole of its All Star shoes: In June 2016, the ITC issued its
final determination ruling in part that Converse's trademark
was invalid based on its finding that Converse
