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An empirical study of the use of social science evidence in trademark cases
Abstract
Cases involving trademarks often include, as part of the evidence presented to a court, social scientific studies, namely surveys, commissioned by one or more parties involved in the litigation to prove legal issues, such as whether two trademarks are confusingly similar. The present study examines the role surveys play in federal courts' decisions in trademark cases. One hundred fifty cases were selected, using specified criteria, from reported opinions, rendered during the years 1947 to 1991, by federal district and appellate courts. Each of these cases included a substantive discussion of at least one survey introduced by the litigants. Data was collected directly from the opinions and coded according to guidelines established by the researcher, which included a count of the number of citations to survey evidence and an assessment, using a 7-point Likert scale, of a court's degree of reliance on a survey. It was hypothesized that certain amendments to the Lanham Act and certain changes to published guidelines used by attorneys in preparing surveys for use in litigation, would have a significant impact on the frequency of citation to survey evidence by federal courts. It was found that there was a significant increase in citations to survey evidence following the adoption of the Federal Rules of Evidence--rules making it easier to admit scientific evidence in litigation. It was further hypothesized that courts would rely more heavily on survey evidence when they favorably viewed the methodology with respect to sampling; questions asked by the surveyors; operational definitions of legal concepts, such as consumer confusion; display of trademarks to survey participants; location of the survey; qualifications and skills of experts and interviewers; and statistical analyses. This hypothesis was supported for all of the methodological issues listed above, except for the location of the survey. The study's findings have implications for attorneys commissioning surveys and social scientists conducting them. Building on the research results and the literature reviewed, the researcher makes recommendations to attorneys desiring to commission social scientific studies for use in trademark cases.
Subject Area
Law|Social psychology
Recommended Citation
Campbell, Emily, "An empirical study of the use of social science evidence in trademark cases" (1996). ETD collection for University of Nebraska-Lincoln. AAI9700075.
https://digitalcommons.unl.edu/dissertations/AAI9700075