Consumer Surveys in Trademark Cases

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Here are a couple of blog posts (here and here) about Judge Posner's criticism of consumer surveys trademark cases. The case at issue is Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396 (7th Cir. Nov.  14, 2013).

 I thought the postings, and the Kraft case itself, were interesting. Judge Posner's main concern is that such surveys are prone to bias because they are designed by experts hired by the parties, and many surveys are conducted in a way that is very different from how consumers encounter marks in the market place. He recommends perhaps relying on more objective, scientifically valid statistical analyses, or experts in the industry. Perhaps this case will push the develpment of more consistent standards of what consititutes a valid consumer survey. I think courts need the help.