Trademark likelihood-of-confusion survey expert
Expert class library · Intellectual property · Either side
Designs and runs consumer surveys that measure whether a junior mark is likely to cause confusion with a senior mark. Survey format, universe, and control selection decide much of the weight the survey receives.
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Questions this testimony turns on
- Is an Eveready or a Squirt format appropriate given the strength of the senior mark?
- Did the survey draw respondents from the right universe for a forward or reverse confusion theory?
- Did the stimuli show the marks as consumers actually encounter them in the market?
- Does the control adequately measure background noise so net confusion is meaningful?
Methods
- Eveready survey format
- Squirt survey format
- Control group design
- Universe definition
How the testimony is attacked
- Wrong survey universe. The universe must match the confusion theory: the junior user's prospective buyers for forward confusion and the senior user's customers for reverse confusion. In Valador v. HTC the court excluded a survey that polled consumers outside the relevant customer base.
- Failure to replicate marketplace conditions. Opponents argue the stimuli did not show the marks as they appear in commerce. The Valador court found the survey unreliable for that reason, among others.
- Leading or suggestive questions. Questions that cue respondents to the purpose of the study create demand effects. Valador excluded a survey that fed respondents the premise that the marks were more similar than they actually were.
- Weak controls and unmeasured background noise. A control that shares too little or too much with the test stimulus distorts net confusion. In Spangler Candy v. Tootsie Roll the court gave a Squirt survey little to no weight because of weak controls but declined to exclude it.
- Disputes over control design and coding. Challenges to how confusion responses were categorized or which controls were used usually go to weight. In A.V.E.L.A. v. Estate of Marilyn Monroe the court refused to exclude an Eveready survey where the challenger did not dispute the expert's qualifications or general method.
What the public record shows
Courts have filed at least 7 opinions since 2015 that discuss this class of testimony and cite Daubert or Rule 702, as of October 2, 2026. Three that show how courts handle this class of testimony:
| Outcome | Case | Court | Year | Why |
|---|---|---|---|---|
| Excluded | Valador, Inc. v. HTC Corp.242 F. Supp. 3d 448 | E.D. Va. | 2017 | The court excluded the plaintiff's likelihood-of-confusion survey under Rule 702 because it used the wrong universe for the plaintiff's confusion theories, failed to replicate market conditions, and asked suggestive questions. |
| Admitted | Spangler Candy Co. v. Tootsie Roll Indus., LLC372 F. Supp. 3d 588 | N.D. Ohio | 2019 | The court denied the motion to exclude the plaintiff's Squirt survey because its flaws were not severe enough to warrant exclusion, but gave it little to no weight due to weak controls and a failure to assess background noise. |
| Admitted | A.V.E.L.A., Inc. v. Estate of Marilyn Monroe, LLC364 F. Supp. 3d 291 | S.D.N.Y. | 2019 | The court denied a motion to exclude an Eveready confusion survey, holding that criticisms of its controls and coding of confusion responses were for the jury rather than grounds for exclusion. |
Each case links to the free opinion text on CourtListener.
In federal court: amended Rule 702
In federal court, since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.
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Updated October 2, 2026. How this page is built: rulings are found by searching court opinions on CourtListener. The summaries are written by AI working from the full text of each opinion, and every citation and link is checked automatically. Outcomes are labelled by what the court did with the expert’s testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling. Spotted an error? Tell us.