The "Little Or No Weight" Internet Survey - Does It Make A Difference?

On the issue of showing consumer confusion in trademark cases, expert evidence in the form of consumer surveys are commonly offered. Two recent cases highlight the role of introducing survey evidence which carry little weight or may be inadmissible, in Water Pik, Inc. v. Med-Systems, Inc., _ F.3d _ (10th Cir. Aug. 12, 2013) (No. 12-1065), and 1-800 Contacts, Inc. v. Lens.com, Inc., _ F.3d _ (10th Cir. July 16, 2013) (Nos. 11-4114, 11-4204, 12-4022)

The Federal Evidence Blog recently noted a Tenth Circuit trademark infringement case in which a consumer confusion survey was deemed, in the midst of a scathing methodological critique, "entitled to no weight," but apparently not simply excluded. This case came on the heels of an earlier Tenth Circuit trademark survey case involving some of the same problems, with the court excluding the survey. As a practical matter, does it make any difference whether a survey is excluded or simply deemed entitled to "little weight"?

Different Disputes, Similar Technical Issues

The two recent cases suggests it may not, for practical purposes. Compare Water Pik, Inc. v. Med-Systems, Inc., _ F.3d _ (10th Cir. Aug. 12, 2013) (No. 12-1065), with 1-800 Contacts, Inc. v. Lens.com, Inc., __ F.3d __ (10th Cir. July 16, 2013) (Nos. 11-4114, 11-4204, 12-4022). The significance of sound survey methodology was underscored in the earlier July case. There, the circuit affirmed summary judgment for the defendant (Lens.com) that there was no issue of fact as to whether Lens.com's use of the "1-800 Contacts" mark used as a keyword for Google Ads had caused initial interest confusion. Plaintiff's theory was that defendant Lens.com's use of "1-800 Contacts" as a Google Keyword misdirected customers to click on links to Lens.com when they were searching for, and interested in, the phrase “1-800 Contacts.”

Typical Problems Of Surveys

Both cases' assessment of the survey results expressed concerns with problems in their methodology. These included problems like over inclusive and unrepresentative sampling, misleading or leading questions 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 both cases.

In the 1-800 Contacts case the circuit set out the trial court's thinking about the survey:
Respondents to this survey were recruited through an online questionnaire and were limited to consumers who said that they either had bought contact lenses in the previous 12 months or were considering buying them in the next 12 months. During the survey they were told to imagine that they had just conducted a Google search for “1800contacts,” and then they viewed screenshots of search results in which an ad for Lens.com appeared among the sponsored links. After studying the screenshots, they were asked whether they thought that the Lens.com ad either “originate[d] from 1–800–CONTACTS,” or “ha[d] sponsorship or approval from 1–800–CONTACTS.”
1-800 Contacts, Inc., __ F.3d at __ (citations to record omitted).

The circuit did not express much disagreement with the trial judge's decision to exclude the Internet survey under FRE 702 because it had:

methodological flaws [that] undermined the survey's reliability. It focused on two perceived flaws. First, it ruled that the population of respondents was too broad, as it was not limited to prospective Internet consumers of contact lenses. Second, it ruled that the questions were ambiguous and leading. The ambiguity arose from the first question's failure to clarify whether “1–800–CONTACTS” referred to a search term or a company. And in the court's view the questions were leading because they suggested the possibility of a connection between Lens.com and 1–800 when the respondents might not have considered such a connection on their own. The court found it unnecessary to address Lens.com's arguments concerning other alleged flaws because the survey would have been inadmissible regardless.
1-800 Contacts, Inc., __ F.3d at __ (citations to record omitted).

What Difference Does It Make?

The two pronged assessment of the survey in 1-800 Contacts and in Water Pik mirror one another -- both suggesting the surveys were over inclusive and unrepresentative sampling and that the survey instrument itself was plagued by misleading or ambiguous questions. Again, both failed on the analysis front for many methodological reasons, including a failure to account for "background" noise that can confound results.

What difference does it make? Both cases involved a review of the trial court's dismissal of a case on a motion for summary judgment. Both cases involved Internet surveys as applied to the question of whether the survey results suggested there was any issue of fact as to whether the defendant's use of the mark infringed in that there was a likelihood of confusion. Both cases involve weaknesses of surveys that, ultimately, left the moving party without any facts to be tried. And because summary judgment is decided by the judge it raises the issue of whether it makes any difference that the judge believed the survey could not be admitted, or that it was entitled to little or no weight? It seemed to make little difference in the assessment of the surveys used in Water Pik and 1-800 Contacts.

Helpful Resource On Scientific Evidence

The 1-800 Contacts case, in its contrast with Water Pik also suggest the usefulness of a resource developed by the Federal Judicial Center and the National Research Council. The publication Reference Manual on Scientific Evidence: Third Edition contains a remarkable number of essays on the use of scientific data in the courts. The manual is available here (allow at least a minute to download because of the size of the pdf file) and its chapter concerning the use and presentation of survey research is available here. At least on survey assessment, the Manual provides a rough check list that ensures a general understanding and approach to scientific evidence, such as survey sampling.

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