When Internet Survey Research Is Entitled To Little Or No Weight

While surveys may be common in trademark cases, a recent case distinguishes between admitting this evidence and the weight this evidence may be given. Tenth Circuit approves admitting, but according little, if any, evidentiary weight, to the defendant's consumer survey in which there were "too many" methodological flaws, such as over inclusive and unrepresentative sampling, misleading or leading questions that fail to deal with how consumers compare the trademarks; and even had these methodological problems not arisen, the failure of the survey analysis to account for "background" noise rendered the survey results unhelpful and confusing, in Water Pik, Inc. v. Med-Systems, Inc., _ F.3d _ (10th Cir. Aug. 12, 2013) (No. 12-1065)

Several years ago, the Ninth Circuit considered the routine use of survey evidence in trademark cases. Although the trial court had excluded an Internet survey because it failed to reflect "real world conditions," the circuit found exclusion of the survey unwarranted. According to the circuit, "[w]e have long held that survey evidence should be admitted 'as long as [it is] conducted according to accepted principles and [is] relevant" in the case. Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Management, Inc., 618 F.3d 1025, 1036 (9th Cir. 2010). The Tenth Circuit has recently added to this assessment of survey evidence, apparently finding it admissible but noting that it was entitled to minimal weight in the case.

"SinuSense" vs. "SinuCleanse"

In the case, plaintiff Water Pix, owned the trademark "SinuSense" and sought a declaratory judgment this mark did not infringe defendant Med-Systems' trademark "SinuCleanse," in connection with "products for rinsing sinus cavities." Defendant Med-Systems counterclaimed for infringement and unfair competition. Ultimately, the trial court found that the plaintiff's mark "was not likely to cause consumer confusion," and granted summary judgment against the defendant on its infringement claim. Water Pik, Inc., _ F.3d at _.

Defendant Med-Systems appealed to the Tenth Circuit, challenging the trial court's finding that they had failed to "produce adequate evidence" that plaintiff's use of the SinuSense mark was likely to cause confusion among consumers with the defendant's SinuCleanse mark. In particular, the defendant cited a survey and report by one of its experts that purported to "measure[ ] consumer confusion arising from the SinuSense mark." The trial judge had examined the survey and report but "determined that they had too many methodological flaws to be of any probative value" in terms of proving the likelihood of confusion. In applying the six factor test the Tenth Circuit uses in assessing the likelihood of confusion in trademark cases, the survey focused on the first nonexhaustable factor -- whether a party could show "evidence of actual confusion." Water Pik, Inc., _ F.3d at _.

Tenth Circuit Affirms

Although the circuit identified and assessed a number of deficiencies in the defendant's survey and report, the court concluded that even had these deficiencies not existed, the results of the survey failed to support an inference of confusion of the marks. According to the circuit:

Med-Systems’ survey, even if assumed to be methodologically sound, does not show a likelihood of confusion. To arrive at this conclusion, we must discuss how likelihood of confusion is computed from surveys. The key questions in Med-Systems’ survey were those that asked whether the SinuCleanse and SinuSense products were made by the same company, whether the companies had a business relationship, or whether one of the companies had obtained permission or approval from the other to make its product. The raw confusion rate was the percentage of respondents who answered yes to one of these questions. For the trial in which respondents viewed packaging for saline packets, 203 respondents participated and 47 answered yes to one of the three questions, yielding a raw confusion rate of about 23%. For the trial involving packaging for netipots, 198 participated and 29 answered yes, producing a raw confusion rate of 14.6%.

Such raw figures are usually unhelpful, however, in predicting likelihood of confusion, because they can be inflated by “background noise,” or false positives arising from something other than the particular confusion that is alleged and that the survey aims to capture. “In any survey, there will always be some interviewees who are bored, hurried or just plain contrary and whose responses must be filtered out . . . .” (We would add another cause of false positives—poor survey design that stimulates confusion.) Surveys can adjust for this background noise by using controls. To isolate confusion arising specifically from the contested mark, survey designers will substitute for the contested mark a control mark that shares as many characteristics with the contested mark as possible, “with the key exception of the characteristic whose influence is being assessed.” By discounting for confusion arising from the control, the survey can measure net confusion, or “the difference between the raw confusion percent and the control confusion percent.”
Water Pik, Inc., _ F.3d at _.


The Water Pik, Inc. case highlights the distinction between admissibility and weight of the survey evidence. The trial court admitted the survey, but accorded it little weight. Rather, it found the survey "devoid of any probative value and therefore irrelevant." The survey was "methodologically unsound." The circuit found these conclusions "reasonable," and that the trial court did not err "in its deciding that the survey failed to support a likelihood of confusion" that was needed for a finding of infringement. This implies that the court, while critical of the survey, considered its merits such as they were. It does not suggest that the court excluded the survey evidence, even though it would appear that if the survey lacked probative value, relevancy and was methodologically unsound, it would be excluded under Daubert and FRE 702. The circuit concluded that the survey provided "little assistance in assessing whether confusion was likely." But rather than treat the survey as excluded, the circuit concluded that for what ever value it had, the "survey strongly suggests an insignificant likelihood of confusion" supporting a conclusion that Med-System's mark was not infringed. Water Pik, Inc. v. Med-Systems, Inc., __ F.3d at __.


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