{"id":138390,"date":"2021-10-08T07:15:03","date_gmt":"2021-10-08T11:15:03","guid":{"rendered":"https:\/\/ipwatchdog.com\/?p=138390"},"modified":"2021-10-11T09:52:12","modified_gmt":"2021-10-11T13:52:12","slug":"new-survey-methods-address-consumer-uncertainty-trademark-law","status":"publish","type":"post","link":"https:\/\/ipwatchdog.com\/2021\/10\/08\/new-survey-methods-address-consumer-uncertainty-trademark-law\/id=138390\/","title":{"rendered":"New Survey Methods Address Consumer Uncertainty in Trademark Law"},"content":{"rendered":"

\u201cThe exploration of consumer uncertainty suggests that trademark litigation matters and surveys should perhaps ask a different question beyond simply what consumers believe.\u201d<\/p>\n<\/div>\n

Disclosure: Steckel is a co-author, with Barton Beebe, Roy Germano and Christopher Sprigman, of the <\/em>study<\/em><\/a> mentioned in this article, \u201cThe Role of Consumer Uncertainty in Trademark Law: An Experimental and Theoretical Investigation.\u201d<\/em><\/p>\n

\"\"Decades of trademark litigation cases have relied on survey evidence that aims to assess what consumers in the marketplace subjectively believe to be true. These methods are intended to answer important trademark questions, including whether consumers believe a mark to be a common term or a brand name and whether consumers mistakenly believe a product bearing a defendant\u2019s mark originates from the plaintiff. While survey and marketing experts often rely on versions of commonly used trademark surveys (e.g., Teflon, Thermos, Eveready<\/em> and Squirt<\/em> formats), these formats in their conventional design may, in some situations, mask critical information about consumers\u2019 beliefs or attitudes that could change the research conclusions \u2014 the strength<\/em> or certainty <\/em>of those beliefs or attitudes.<\/p>\n

Take, for example, the Teflon <\/em>survey format often used in genericism cases. The format relies on a predetermined binary measurement: is the term a common name, or is the term a brand name? Although the questions may include \u201cother\u201d or \u201cdon\u2019t know\/unsure\u201d answer options, respondents who select \u201ccommon name\u201d or \u201cbrand name\u201d may have varying degrees of certainty in their belief, which the conventional Teflon <\/em>format does not allow respondents to express. Without evaluating the strength with which respondents hold a particular belief, such as via a scale, the standard binary measurement can only answer the conventional question of whether a substantial majority of respondents indicated a belief that a term is a common name \u2014 even though those respondents may only hold that belief weakly.<\/p>\n

Including measures of consumers\u2019 belief strength or certainty can change the results of a survey and the conclusions drawn by the survey and marketing experts. Recent academic research<\/a> by a New York University research team (Professors Barton Beebe, Christopher Sprigman, Joel Steckel, and Roy Germano) proposes modifications to the conventional trademark survey formats that would allow researchers to expand from simply testing whether consumers hold a particular belief to evaluating, in addition, the strength or certainty of their belief.<\/p>\n

To illustrate the potential value of assessing consumer uncertainty in trademark litigation, we will discuss a survey and recent decision in the genericism matter Snyder\u2019s Lance, Inc. and Princeton-Vanguard, LLC v. Frito-Lay North America, Inc.<\/em><\/a>, and explore methods to assess consumer uncertainty using that example.<\/p>\n

Case Example: A Teflon <\/em>Survey and a Recent Decision\u00a0 <\/strong><\/h2>\n

In 2004, Princeton-Vanguard developed and began marketing and selling a pretzel snack product that it named \u201cPRETZEL CRISPS.\u201d In 2009, Princeton-Vanguard filed an application to register \u201cPRETZEL CRISPS\u201d as a trademark for pretzel crackers, and subsequently, in 2010, Frito-Lay filed a notice of opposition to the application, arguing that the term \u201cPRETZEL CRISPS\u201d was generic for pretzel crackers. After over a decade and several decisions from the Trademark Trial and Appeal Board (TTAB) and the Federal Circuit and Fourth Circuit Courts of Appeals, the U.S. District Court for the Western District of North Carolina entered a final order<\/a> in June 2021 that Princeton-Vanguard\u2019s registration of the \u201cPRETZEL CRISPS\u201d mark be canceled as \u201cconsumers primarily perceive \u2018pretzel crisps\u2019 to be a common\/generic name.\u201d Of note, on August 31, 2021, Snyder\u2019s Lance and Princeton-Vanguard voluntarily dismissed<\/a> an appeal of that June 2021 ruling.<\/p>\n

In forming its June 2021 decision<\/a>, the court relied upon evidence such as \u201cusage by competitors, media references and consumer surveys,\u201d including a Teflon <\/em>survey conducted by Dr. E. Deborah Jay on behalf of Princeton-Vanguard (\u201cJay Survey\u201d). The Jay Survey utilized a standard Teflon<\/em> format, in which survey respondents who understood in the screening questions \u201cthe difference between a brand name and a common name\u201d were given a list of seven terms, including the at-issue \u201cPRETZEL CRISPS\u201d and six control terms, in random order. Three of the control terms were brand names (\u201cCHEESE NIPS,\u201d \u201cFLAVOR TWISTS\u201d and \u201cSUN CHIPS\u201d), and the remaining three control terms were common (generic) names (\u201cONION RINGS,\u201d \u201cGOURMET POPCORN\u201d and \u201cMACADAMIA NUT\u201d). For each term, respondents in the Jay Survey were asked whether the term was a brand name or a common name. Using this question with its conventional binary answer options, the Jay Survey found<\/a> that 55% of respondents believed \u201cPRETZEL CRISPS\u201d was a brand name, 36% believed it was a common name and 9% indicated they had not heard of the term or did not know.<\/p>\n

While the court indicated that it did not question the survey methodology, it did \u201cquestion [Dr. Jay\u2019s] conclusion and confidence in the results.\u201d In deeming the survey\u2019s results \u201cinconclusive,\u201d the court noted<\/a>, among other factors, the fact that 55% was only a \u201csmall majority<\/a>\u201d and that the figure had a wide margin of error of \u00b17 percentage points at the 95% confidence interval.<\/p>\n

The recent replication and modification of the Jay Survey conducted by the aforementioned NYU research team suggest that incorporating measures that allow the researcher to account for consumer uncertainty would yield survey results that support the court\u2019s June 2021 decision that \u201cPRETZEL CRISPS\u201d is a generic term.<\/p>\n

Example Survey Methods: Adapting Teflon<\/em> Surveys to Measure Consumer Uncertainty<\/strong><\/h2>\n

Building on the Jay Survey in the \u201cPRETZEL CRISPS\u201d matter, the aforementioned NYU research team tested three methods to incorporate measures of consumer uncertainty into assessments of whether a term is perceived to be a brand name or a common name. We describe these options below and suggest that, in some instances, shedding light on consumers\u2019 varying belief strengths can increase the robustness of genericism survey results.<\/p>\n

The replication of the Jay Survey method, up through the binary measurement of brand or common name, found virtually identical results for the six control terms. However, it found substantially different results for \u201cPRETZEL CRISPS\u201d \u2014 in contrast with the Jay Survey finding that 55% of respondents believed that PRETZEL CRISPS was a brand <\/em>name, the replication by the NYU research team found that 63% of respondents believed that it was a generic <\/em>term. This instability in beliefs regarding the \u201cPRETZEL CRISPS\u201d term specifically could be a symptom of consumer uncertainty and nonattitudes. Three additional methods employed by the NYU research team to assess consumer uncertainty can help tell a more complete story of consumers\u2019 beliefs.<\/p>\n

Method 1: Adding a Follow-Up Question on Certainty<\/strong>
\n<\/em>
\nAfter identifying \u201cPRETZEL CRISPS\u201d in the basic Teflon<\/em> survey format with binary options, respondents who answered \u201cbrand name\u201d or \u201cgeneric name\u201d (and not \u201cdon\u2019t know\u201d) could be asked a follow-up question about their certainty in their answer \u2014 \u201cHow likely do you think it is that your answer is correct?\u201d \u2014 with answer options \u201cJust guessing,\u201d \u201cSomewhat likely correct,\u201d \u201cVery likely correct\u201d and \u201cDefinitely correct.\u201d Using this method, applied to the Jay Survey replication, the NYU research team found that more than three-quarters of respondents indicated some degree of uncertainty regarding their answer to the main Teflon <\/em>question.<\/p>\n

Method 2:<\/em> Modifying the Main <\/em>Teflon<\/strong> Question from a Binary Choice to a Seven-Point Likert Scale<\/strong>
\n<\/em>
\nIn a modification to the traditional Teflon<\/em> survey format, respondents were instead shown answer options on a seven-point Likert scale, ranging from \u201cDefinitely a generic name\u201d to \u201cDefinitely a brand name,\u201d with \u201cNot sure\/Don\u2019t know\u201d as the middle option. In the NYU research team\u2019s adaptation of the Jay Survey in this manner, half of respondents selected an option suggesting some uncertainty at points 3, 4 and 5 of the seven-point scale.<\/p>\n

Method 3: Modifying the Main <\/em>Teflon<\/strong> Question from a Binary Choice to a Sliding Scale from 0 to 100<\/strong>
\n<\/em>
\nIn another modification, respondents were shown answer options on a sliding scale from 0 to 100, in which 0 represents \u201cDefinitely a brand name\u201d and 100 represents \u201cDefinitely a generic name\u201d with various intermediaries. While this method introduces potentially less meaningful cutoffs, the results of the NYU research team\u2019s adaptation of the Jay Survey showed a similar pattern as in the prior methods, with almost half of respondents falling in the \u201cmiddle\u201d of the scale, or between points 15\u201385.<\/p>\n

Although these three methods may vary \u2014 in terms of the usefulness of the information provided and their efficiency (i.e., condensing to a single question or asking a two-part question) \u2014 they demonstrate that conventional Teflon <\/em>surveys may mask varying degrees of consumer uncertainty that could affect the study conclusions. Utilizing such an approach would enable greater clarity on the certainty of respondent beliefs and may help to answer the questions that the court raised in connection with the conclusions drawn from the Jay Survey.<\/p>\n

A Different Question Could Make the Difference<\/strong><\/h2>\n

This article uses the Snyder\u2019s Lance, Inc. and Princeton-Vanguard, LLC v. Frito-Lay North America, Inc.<\/em><\/a>, matter as an example to illustrate the potential improvements in the robustness of genericism surveys if consumer uncertainty is accounted for. Similar methods could be applied to other trademark questions, such as likelihood of confusion. Most importantly, the exploration of consumer uncertainty suggests that trademark litigation matters and surveys should perhaps ask a different question beyond simply what consumers believe \u2014 a more appropriate question and survey design would address whether a threshold proportion of consumers holds a particular belief at some threshold level of certainty. In some instances, a trademark survey that accounts for consumer uncertainty could yield different conclusions from one that offers no insight into how strongly a belief is held by consumers.<\/p>\n","protected":false},"excerpt":{"rendered":"

Decades of trademark litigation cases have relied on survey evidence that aims to assess what consumers in the marketplace subjectively believe to be true. These methods are intended to answer important trademark questions, including whether consumers believe a mark to be a common term or a brand name and whether consumers mistakenly believe a product bearing a defendant\u2019s mark originates from the plaintiff. While survey and marketing experts often rely on versions of commonly used trademark surveys (e.g., Teflon, Thermos, Eveready and Squirt formats), these formats in their conventional design may, in some situations, mask critical information about consumers\u2019 beliefs or attitudes that could change the research conclusions \u2014 the strength or certainty of those beliefs or attitudes. \u00a0<\/p>\n","protected":false},"author":110540,"featured_media":138392,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"content-type":"","footnotes":"","_links_to":"","_links_to_target":""},"categories":[6998,3,38597,191],"tags":[73035,5531,49,12,2881,42759,2309],"yst_prominent_words":[17362,16732,19568,42715],"acf":[],"_links":{"self":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts\/138390"}],"collection":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/users\/110540"}],"replies":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/comments?post=138390"}],"version-history":[{"count":0,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/posts\/138390\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/media\/138392"}],"wp:attachment":[{"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/media?parent=138390"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/categories?post=138390"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/tags?post=138390"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/ipwatchdog.com\/wp-json\/wp\/v2\/yst_prominent_words?post=138390"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}