In recent years, the Ninth Circuit has become a focal point for discussions on consumer surveys in trademark litigation under the Lanham Act. Opinions from the circuit have increasingly scrutinized the methodologies and applications of these surveys, with growing attention on the famous Eveready and Squirt surveys.
The Eveready and Squirt formats are staples in trademark litigation, each serving distinct roles. Eveready surveys are typically used when the senior mark is strong and the products are not directly competitive. These surveys rely on consumer recognition of a brand without cues, assessing if the junior mark invokes the senior mark’s name or product line. Meanwhile, Squirt surveys are employed when both the senior and junior marks are present in the same market channels, providing a more direct comparison by presenting the marks simultaneously to survey participants.
Within the Ninth Circuit, courts have raised important considerations about the design and execution of these surveys. For example, the court might critique a survey’s sample selection, question clarity, or the neutrality of its administration. Such factors can heavily influence the perceived likelihood of consumer confusion, which is central to trademark infringement cases.
One compelling discussion in the circuit surrounds how these surveys are presented in court. Judges are increasingly demanding transparency in how survey questions are formed and how results are interpreted. This trend underscores a broader judicial concern over the evidential weight these surveys carry. In particular, courts have highlighted the necessity of a survey reflecting real-world conditions to be persuasive.
Legal practitioners in trademark law are advised to pay close attention to these evolving standards, as the Ninth Circuit’s perspectives can set influential precedents. With over 200 trademark-related articles published daily, keeping abreast of trends can be challenging. Access to platforms like Law360 can provide crucial insights, allowing professionals to navigate these complex waters effectively.