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Peter Hess

Vice President

Analysis Group

Peter Hess is a Vice President with Analysis Group, Inc. Dr. Hess specializes in the application of microeconomic theory and analytical methods in litigation, business, and policy contexts. He has served as an expert on breach of contract, valuation, damages, false advertising, intellectual property, class certification, and employment-related issues.

Recent Articles by Peter Hess

The Use of Third-Party Surveys in Litigation

Surveys conducted independent of litigation have had mixed success in court. These surveys have been offered as evidence of customer confusion in false advertising cases, intellectual property value in patent cases, consumer behavior in antitrust cases, and plaintiff identification in class actions. In some cases, non-litigation surveys have been admitted as useful evidence on important questions for which data are scarce; in others, they have been excluded as irrelevant or unreliable.

What Recent Case Law Tells Us About the Importance of Consumer Surveys in Trademark Cases

On August 3, 2021, the U.S. District Court for the Southern District of Florida ruled against plaintiff Vital Pharmaceuticals, Inc.’s claim of trade dress infringement against defendant Monster Energy Co. due in part to plaintiff’s failure to demonstrate secondary meaning or likelihood of confusion. On June 7, 2021, the U.S. District Court for the Central District of California granted defendant lululemon’s motion for summary judgment regarding allegations of trademark infringement, basing its decision in part on plaintiff’s failure to show likelihood of confusion. Similarly, in May 2021, the U.S. District Court for the Southern District of New York ruled against plaintiff Christophe Roberts’ request for preliminary injunction against defendant Puma’s alleged trademark infringement due in part to his inability to show consumer confusion. In each of these opinions, the court noted the absence of survey evidence (or, in the Vital Pharmaceuticals case, the inadequacy of an “almost comically flawed” survey). These recent rulings underscore the increasingly important role well-designed surveys play in courts’ consideration of evidence of consumer confusion and/or secondary meaning in trademark and trade dress cases.