Surveys in Trademark Litigation: Likelihood of Confusion and Dilution

Leveraging Survey Evidence to Demonstrate Consumer Perception in the Marketplace and Avoid Fatal Errors

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, July 25, 2017
Recorded event now available

This CLE webinar will provide guidance to trademark counsel on the use of surveys in trademark cases. The panel will discuss presenting, defending and challenging surveys, and will outline approaches for strategically leveraging surveys to demonstrate crucial legal issues in trademark matters.


Surveys are increasingly being used in trademark matters to demonstrate consumer perception of a mark in the marketplace. Counsel are using surveys to provide evidence concerning likelihood of confusion, dilution, genericism, secondary meaning and more.

Trademark attorneys must determine whether to utilize surveys early on in the strategic development of a trademark case. In addition to using surveys to provide evidence at trial, counsel can leverage surveys in the decision-making process about how to proceed in a matter. Surveys are also a valuable tool in negotiating a settlement.

Listen as our authoritative panel of trademark attorneys examines the use of trademark surveys to demonstrate key legal issues—including likelihood of confusion and dilution—in trademark litigation. The panel will discuss presenting and defending the trademark survey as well as challenging surveys. The panel will offer best practices for leveraging surveys and avoiding damaging errors.


  1. Likelihood of confusion surveys
  2. Dilution surveys
  3. Best practices for leveraging surveys


The panel will review these and other key issues:

  • How can counsel best utilize trademark surveys to demonstrate likelihood of confusion or dilution?
  • What steps should counsel take to ensure the survey is properly defined and formulated to achieve counsel’s intended goal?
  • What are the best practices for practitioners to execute the survey to make sure the results are admissible?


Megan K. Bannigan, Counsel
Debevoise & Plimpton, New York

Ms. Bannigan specializes in trademark, copyright, false advertising, rights of publicity, licensing and other contractual disputes and related matters. She represents clients across a range of industries, including fashion and luxury goods, entertainment, professional sports, pharmaceuticals, consumer products and financial services. Ms. Bannigan has extensive trial experience as well as experience representing clients before the USPTO, the TTAB and the International Trade Commission. She is a frequent speaker on IP issues and is an adjunct professor at Rutgers School of Law. 

Matt Ezell, Partner
Ford Bubala & Associates, Huntington Beach, Calif.

Mr. Ezell has been engaged in commercial marketing research and consulting projects in a variety of areas in the consumer product, industrial product, and service sectors of the economy. For 16 years, he has participated in litigation-related consultancies involving IP matters, including matters pending before U.S. federal courts, the TTAB and Appeal Board of the USPTO, and the International Trade Commission. Mr. Ezell authors an annual paper entitled Intellectual Property Surveys, which is a compendium of excerpts from case opinions covering surveys on genericness, descriptiveness/suggestiveness, secondary meaning, likelihood of confusion, false and/or misleading advertising, fame, and dilution.


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Intellectual Property Law Advisory Board

Stephen R. Baird


Winthrop & Weinstine

Charles S. Baker


Locke Lord

David S. Bloch


Winston & Strawn

Ian N. Feinberg


Feinberg Day Alberti & Thompson

Bassam N. Ibrahim


Buchanan Ingersoll & Rooney

Mark P. Wine



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