Eric D. DeRosia (2019), “Fixing Ever-Ready: Repairing and Standardizing the Traditional Survey Measure of Consumer Confusion,” Georgia Law Review, 53 (2), 613-682.
ARTICLE:
Georgia Law Review
VIDEOS:
• “Virtual Conference Presentation” — Contributions to Trademark Law (Scholarship and Practice) YouTube
• “Virtual Conference Presentation” — Contributions to General Legal Scholarship (Empirical Evidence in the Courtroom) [not yet available]
ABSTRACT:
In trademark infringement litigation, courts often rely on consumer surveys that use the “Ever-Ready” method to measure consumer confusion. Courts are careful to scrutinize consumer surveys for ways in which their methodology might have biased their results toward the outcome desired by their proponents. This Article strengthens and improves such examinations by empirically testing and improving the Ever-Ready method itself.
The findings of four new empirical studies reported in this Article indicate the faith placed by the courts in the Ever-Ready method is somewhat misplaced. Seemingly subtle variations in the wording of the Ever-Ready questions have a consistent and surprisingly large influence on the survey’s final results.
Fortunately, the four empirical studies also give clear guidance on how to repair and standardize the question wordings. Two versions of the Ever-Ready method—one version to be used in surveys proffered by plaintiffs and another version to be used in surveys proffered by defendants—are defined and verified based on data from the four studies. The two versions are “known” in the sense that they are defined empirically and published to the community, and “conservative” in the sense that they cut against the direct interests of the survey’s proponent.
The standards set by these known-conservative versions of the Ever-Ready method will empower the courts and a survey’s opponents to scrutinize (in a rigorous, consistent, and systematic manner) the extent to which the question wording in an Ever-Ready survey is slanted toward the proponent’s desired outcome. Anticipating such scrutiny, experts will have a powerful incentive to adopt the known-conservative versions that are identified in this Article. The expected end result is greater reliability for expert testimony, with a particular emphasis on preventing parties from bolstering weak cases with methodological artifacts.
STIMULI:
Studies 1 and 2
Study 3 (Junior Mark)
Study 3 (Control)
Study 4 (Junior Mark)
Study 4 (Control)
– Eric DeRosia