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May-June, 2010 Vol. 100 No. 3 Back to TMR Main Page
 
A Comparative Empirical Analysis of Online Versus Mall and Phone Methodologies for Trademark Surveys
 
 
In recent months, the author conducted several surveys in the context of trademark disputes that used both online and traditional (telephone or mall) components. This article uses actual data from these surveys to explore the many questions that arise concerning the reliability of online surveys in comparison with their well-accepted mall-intercept and telephone counterparts. Can the procedures designed to control the online process be as effective as the procedures used in mall-intercept and telephone interviewing? Are the differences among mall shoppers, telephone respondents, and online survey takers likely to result in substantively different responses to the same survey stimuli and questions concerning trademarks or trade dress? Do the criticisms most commonly leveled against online methodologies actually translate into any appreciable defects in the survey data that merit viewing online surveys with greater skepticism or affording them any less weight as evidence on trademark issues? A mere handful of surveys cannot fully answer these questions. Nevertheless, a comparison of results from trademark surveys using both the Internet and another methodology sheds light on the reliability of online surveys, the issues likely to be raised by courts and adversaries, and the facts to consider when deciding whether or not to use online research methods.     

In Part II, this article summarizes the general requirements for an admissible survey, particular concerns regarding online surveys, the treatment of online surveys in the courts, and the conceptual and legal basis for the acceptance of online surveys in evidence. Part III presents two case studies in which a total of three surveys were conducted using both the Internet and a second methodology—two online/telephone surveys and one online/mallintercept survey. Finally, Part IV of this article examines the data from these surveys and discusses the potential implications for the reliability of online surveys and the considerations the data raises for litigants who are selecting a methodology for a trademark survey.