January 01, 2016

Experts: Weird Science: Consumer Survey Experts in the Courtroom

Steven J. Wadyka Jr.

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I was never much of a science student. I majored in English. I satisfied my science requirement by taking a course known as “Physics for Poets.” There was no exam, no complex equations to be solved; we wrote a paper. Mine was entitled “The Problem of Quark Confinement.” To this day, I have no understanding of what that phrase means.

Fortunately for me, my career as a litigator led me to the world of trademark litigation. In a trademark case—unlike medical malpractice, where a trial lawyer must become conversant with scientific terminology and surgical procedures—there is typically no “hard” science involved. Perhaps that is why trademark law is often referred to (derisively, usually by patent lawyers) as “soft IP.”

We trademark litigators, however, do get to dip our toes in the science pool. The science of consumer behavior, which has long guided advertisers on how to pitch products, is at the core of every trademark case. After all, the issue of whether one trademark is infringed by another comes down to how consumers perceive the marks. In other words, this branch of science delves into the consumers’ thought processes triggered by the words, lettering styles, designs, and other stimuli presented on a product or its packaging. Unlike most scientific disciplines, consumer surveys seek to bring pure subjectivity into the realm of empirical analysis and measurable statistics.

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