The Role of Consumer Uncertainty in Trademark Law: An Experimental and Theoretical Investigation
Barton, Germano, Roy, and Sprigman.
From the abstract:
Nearly every important issue in trademark litigation turns on the question of what consumers in the marketplace subjectively believe to be true. To address this question, litigants frequently present consumer survey evidence, which can play a decisive role in driving the outcomes of disputes. But trademark survey evidence has proven to be highly controversial, not least because it is notoriously prone to expert manipulation. In this Article, we identify and present empirical evidence of a related, but more fundamental problem with trademark survey evidence: while all the leading survey formats in trademark law test for whether consumers hold a particular belief, they do not test for the strength or the varying degrees of certainty with which consumers hold that belief.
Beebe, Barton and Germano, Roy and Sprigman, Christopher Jon and Steckel, Joel, The Role of Consumer Uncertainty in Trademark Law: An Experimental and Theoretical Investigation (May 27, 2021). Available at SSRN