مسائل ناشی از استفاده از نمونه ها به عنوان مدرک در موارد علامت تجاری

This article reviews the use of survey evidence in cases involving alleged infringement of trademarks. Because courts do not admit “hearsay” evidence, at first, courts were reluctant to accept evidence based on a sample or portion of the relevant population. Some early cases that led to the legal acceptance of samples and surveys are described. The role of survey evidence in a variety of types of trademark litigation, e.g., dilution or deceptive advertising are illustrated with data from actual cases.

Many of the most important data sets by economists are based on statistical samples. For example, the labor-force data and related income distribution and poverty count are obtained from a monthly sample of households and the Consumer Price index is based on a sample of prices of items bought by the “typical” household. The legal system was slow to accept information based on samples but more recently survey data has been used in a variety of cases. For example, samples of financial records are used to estimate hospital overcharges in Medicaid or Medicare cases (Heiner et al., 1984), economic damages in equal employment and lost profits cases (Walker and Monahan, 1998; Hall and Lazear, 2000) and estimating the tax basis of stock acquisitions. Samples of the assessed value and sales prices of farms or homes are utilized in cases concerning the fairness of property assessments (Gastwirth 1988 and Gastwirth 1992). Samples are also used in criminal cases, e.g., estimating drug quantities (Aitken, 2000; Izenman, 2000). Two areas of special importance to economics are the use of surveys to define the relevant market area and the characteristics that affect consumer preferences in anti-trust cases (King, 1986; Diamond 1994 and Diamond 2000) and to assess whether a product infringes upon an established trademark (Gastwirth, 1988; Diamond 1994 and Diamond 2000). After reviewing early cases involving the acceptance of samples by courts, this article describes the evidentiary role of surveys in Lanham Act litigation. Some early cases are described in Section 2 to illustrate how it took some time for the legal process to accept sample information in lieu of data for the entire population. Section 3 is devoted to the different uses of surveys in trademark and misleading advertising cases concerning possible violations of the Lanham Act. This is the legal area that most frequently relies on survey evidence. The importance of measuring the appropriate concept as well as properly designing the data collection process so the sample represents the relevant population of potential consumers data is emphasized.

Survey evidence is a useful tool in legal cases, especially in the trademark protection area. Economists and statisticians interested in this area, especially if they plan to testify in court, should be aware of the recent Supreme Court decisions designed to ensure the reliability and validity of scientific evidence (Berger, 2000; Rosenblum, 2000) and recent revisions of the Federal Rules of Evidence. Trial judges are now responsible for assessing the reliability of the proposed expert testimony and the qualifications of the expert. Both are examined in light of their relevance to the issues in the case at hand. It is important for potential experts to understand the purpose of the survey in the context of the litigation, i.e., which parameter is it supposed to measure and design an appropriate study. A summary report should not only present the results, e.g., percent “confused” along with a confidence interval, it should contain a description of the response rate, the method of data collection and a copy of the questions and interviewer instructions (Diamond, 2000).