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November-December, 2010 Vol. 100 No. 6 Back to TMR Main Page
 
A Replication Problem in Survey Design, Including a Critique of the Decision in Thoip v. Disney
 
 
The basic premise of this article is that the view of replication
represented in Thoip (and indeed in a series of decisions, which are discussed below) is in error. Instead, the article will present and discuss another perspective on what it means to replicate market conditions. This alternative view starts from the assumption that the governing justification for granting the monopoly we call a trademark is that trademarks allow consumers to hold accountable the source of the products for which they are registered. It then premises that consumers’ ability to hold producers responsible is driven not just by information communicated at the point of sale but by all the information about the products that has been available to consumers in the past or is reasonably sure to become
available to them in the future, particularly all the information
available about the plaintiff’s product(s). This leads to the basic construct that replication of market conditions means that a survey should replicate (in actuality, present or summarize) as much as feasible of the information a consumer is liable to have about the trademarks in question. In particular, the survey methodology should incorporate as much as feasible of the information consumers are liable to have about the plaintiff’s mark at the time when they first come into contact with the defendant’s mark. If one accepts this alternative view of replication, then, to be consistent with the consumer-oriented justification for trademarks, the survey must consider not just the previous-point-of-sale presentation but also (to the degree feasible) other past, and reasonably sure future, sources of information.
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