Trademark and Deceptive Advertising Surveys: Law, Science,
and Design (ed. Shari Seidman Diamond & Jerre B. Swann, 2012): A collection
of essays surveying various aspects of the law and offering the authors’
opinions on those aspects.
Of particular note: Itmar Simonson and Ran Kivetz’s discussion
of demand effects on respondents’ answers and how poor survey design can make
those answers almost useless; Jerre Swann’s discussion of cases in which market
leading brands come to mind almost no matter what you do (also notable but much
less persuasive is his argument for reading any requirement of proof of likely
harm to the distinctiveness of a trademark out of the dilution statute, if
likely association is shown); Jacob Jacoby’s defense of closed-ended questions;
and a lengthy discussion by Roger Tourangeau and Shari Seidman Diamond of the
advantages and disadvantages of internet surveys. Bruce Keller focuses on false advertising surveys, which are often treated the same way as trademark surveys but can ask very different questions. Other chapters provide overviews of things
like selection of controls and percentages of confusion found to be probative
of likely confusion, or lack thereof. Shari Seidman Diamond reminds us that
people are very bad at explaining their own impressions/decisions and thus
answers to the question “why do you think …?” are less likely to be reliable
than comparing their other answers to the answers given in the control cell.
Many of the authors are respected survey experts, or at
least prolific survey experts, and the opinions offered sometimes involve just a bit of
score-settling with judges they deem insufficiently deferential to their
expertise. Nonetheless, it’s a useful
volume, packed with citations, and could offer a good place to start for
figuring out what kind of survey would be useful in a particular case, as well
as how a survey might best be attacked/defended.
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