Fame and Recognition 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

Fame and Recognition Surveys

Article

Federal trademark law provides heightened protection — and a distinct cause of action for dilution — to marks that are famous. The Lanham Act defines a famous mark as one that is "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner."

Consumer surveys are a primary evidentiary tool for establishing or contesting the fame of a mark, and they also bear on related questions of consumer recognition in dilution-by-blurring and dilution-by-tarnishment proceedings. Dr. Neal has conducted fame and recognition surveys in a large number of fame and dilution matters.

The Legal Standard and Universe

Because the Lanham Act's fame standard references the "general consuming public of the United States," surveys designed to address fame are generally directed at a nationally representative sample of U.S. consumers. Fame surveys should generally be designed with demographic quotas matched to U.S. Census estimates, ensuring that survey results are projectable to the full national population and that any reported recognition figures accurately reflect the breadth of consumer awareness contemplated by the statute.

Unaided Brand Awareness

An unaided awareness test asks respondents to name the brands they associate with a particular product or service category. Respondents who spontaneously identify the mark at issue are counted as having unaided awareness of it. Because respondents must retrieve the mark from memory in response to a category prompt — without being shown the mark itself — unaided awareness tests tend to produce estimates that are lower than those that are generated by aided recognition tests. This occurs because consumers are typically aware of more brands than come to mind spontaneously in any given moment of recall, due to ordinary memory dynamics such as momentary forgetting or the cognitive effort of searching one's memory.

Aided Recognition

An aided recognition test presents respondents with the mark itself — whether as a word, image, or other representation — and asks whether they recognize it as a designation of source for a particular company's goods or services.

Because aided recognition tests present respondents with the mark directly, it is important to account for the possibility that some respondents may indicate recognition of a mark they have not genuinely encountered — a phenomenon that can arise from acquiescence bias (a general tendency to answer 'yes'), guessing, or inattention. To detect and control for such false positive responses, it is common to incorporates a fictitious brand stimulus that respondents could not have genuinely encountered. Respondents who indicate recognition of the fictious brand are flagged in the analysis, and this false positive rate is addressed in reporting the recognition results for the mark at issue.

Association and Dilution

In addition to measuring the fame of the senior mark, dilution proceedings may also call for evidence on the degree of association consumers form between the senior and junior user based on the alleged trademark infringement — the central empirical question in a dilution-by-blurring claim. Association surveys typically present respondents with the junior user's mark and measure whether, and to what degree, it calls to mind the senior user's mark or brand.

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 fame, recognition or association survey is appropriate for your case, contact Catalyst Behavioral Sciences for a confidential consultation.