Class Action Surveys

Dr. Neal, with the support of the Catalyst research team, has designed and conducted hundreds of consumer perception surveys for use in litigation across intellectual property, false advertising, and complex commercial disputes.

He has been retained by both plaintiffs and defendants in federal and state court proceedings, before the Trademark Trial and Appeal Board (TTAB), the National Advertising Division (NAD), and the International Trade Commission (ITC). Catalyst’s work spans multiple issues and methodologies.

Intellectual Property Cases

Likelihood of
Confusion

Likelihood of confusion surveys measure whether consumers are likely to be confused as to the source, sponsorship, or affiliation of products or services bearing allegedly similar marks. Dr. Neal has conducted and testified concerning the following kinds of likelihood of confusion surveys.

Eveready format Squirt format Aided-Eveready format Reverse and forward confusion Point-of-sale confusion Post-sale confusion Initial interest confusion

Secondary
Meaning/Distinctiveness

Secondary meaning surveys measure whether consumers associate a word, phrase, or trade dress configuration with a single source — a key evidentiary requirement to differentiate marks that are alleged to be merely descriptive versus distinctive.

Words and word marks Logos and designs Trade dress

Genericness

Genericness surveys measure whether a term or trade dress is primarily understood by the relevant public as identifying a category of goods or services or as a brand. Dr. Neal has conducted and testified concerning the following kinds of genericness surveys.

Teflon format Thermos format

False Advertising Cases

False advertising surveys — also called consumer perception surveys — measure the messages consumers take away from advertising, product packaging, and other marketplace communications. They are a primary evidentiary tool in Lanham Act Section 43(a) false advertising disputes and in proceedings before the National Advertising Division (NAD).

Net impression and deception Puffery Materiality and influence on purchasing decisions

Fame, Recognition
and Dilution

Fame/recognition surveys assess the degree of public recognition of an allegedly famous mark. Dilution surveys measure whether consumers make an association with the senior user due to a junior user's alleged infringement — a central inquiry in dilution-by-blurring claims.

Fame and recognition Association and dilution by blurring

Class Certification and Consumer Impact

In class action proceedings, consumer surveys can help by providing objective, population-level evidence of common consumer understanding or reliance — supporting or rebutting predominance arguments under Rule 23(b)(3).

Predominance/homogeneity of an asserted class Consumer impact and reliance

Patent-Related
Surveys

Consumer surveys in patent litigation can address a range of critical questions, including the value of a claimed invention, whether/how often an allegedly infringing feature or method is used, and whether relevant consumers were induced to infringe. A variety of "direct" survey methods (e.g., test-control experiments) and "indirect" survey methods (e.g., choice-based conjoint) are commonly used in these cases.

Apportionment of feature value — direct survey methods and conjoint analysis Infringing use Inducement

Survey Rebuttal and Methodological Critique

Dr. Neal has served as a rebuttal expert across trademark, false advertising, patent, and class action matters — analyzing opposing surveys and identifying methodological flaws that bear on reliability and validity, including universe errors, stimulus bias, missing or poorly matched controls, randomization failures, weak quality controls, and leading question design.

Universe and stimulus critique Control cell and randomization Question design and data integrity

Class Action Surveys

Article

Consumer surveys are increasingly playing a role in class action litigation, particularly in cases where the central dispute involves whether a challenged practice, commercial communication, or product attribute affected a defined class of consumers in a consistent and measurable way. Survey evidence can bear directly on the requirements for class certification, and it can address the merits of consumer impact and reliance claims at the population level — providing objective, quantitative data on questions that might otherwise be resolved only through individualized inquiry into each class member's experience. Dr. David Neal has designed surveys in multiple class action matters, for both Plaintiffs and Defendants.

Surveys in Class Certification

Surveys can answer multiple questions in the context of class action cases.

At preliminary phases, surveys can help determine whether an asserted class is sufficiently homogeneous for questions of law or fact common to the class to predominate over questions affecting only individual members.

At the same or later stages, surveys can test whether consumers actually saw, relied on, or changed their behavior or perceptions in response to a challenged practice.

In either scenario, the relevant consumer universe should generally correspond to the proposed class definition, which may be specified in terms of geographic scope, time period, transaction type, or other parameters.

Note

This summary captures general themes and principles that apply in many circumstances. All surveys in litigation are, however, unique to the facts, allegations and marketplace conditions at issue, and are customized accordingly.

Work With Dr. Neal

Portrait of David Neal

Work With Dr. Neal

To discuss a matter or explore whether a class action survey is appropriate for your case, contact Catalyst Behavioral Sciences for a confidential consultation.