In the course of affirming the district court’s decision in Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396, Judge Posner went a step further. While upholding the injunction, he ended his assessment with some comments “for future reference” when it comes to consumer surveys offered to demonstrate consumer confusion in support of a trademark infringement claim:
“Consumer surveys conducted by party-hired expert witnesses are prone to bias. There is such a wide choice of survey designs, none fool-proof, involving such issues as sample selection and size, presentation of the allegedly confusing products to the consumers involved in the survey, and phrasing of questions in a way that is intended to elicit the surveyor’s desired response—confusion or lack thereof—from the survey respondents….All too often “experts abandon objectivity and become advocates for the side that hired them”….it’s clear that caution is required in the screening of proposed experts on consumer surveys.”
There is certainly the potential for surveys to be misused and/or misinterpreted. Consistent with Judge Posner’s advice, care must be taken to make sure your survey results are accurately representative of the true nature and beliefs of the underlying population. Otherwise they may be disregarded due to bias (real or perceived) or simply poor design. Advice regarding proper consumer survey design to avoid bias is available here.