# Trademark surveys have to survive a court's test

A confusion survey is useful in a trademark dispute only when the sample, the questions and the fieldwork can be defended.

Abi-Gaye White-Thomas wrote this in April 2016 as an attorney-at-law and researcher. Balcostics Law is a separate business from Balcostics Research. See [balcosticslaw.com](https://balcosticslaw.com/).

A confusion survey is used when a firm needs evidence on whether buyers take two marks as coming from the same source. The survey is useful only if a court will hear it. That depends on how the sample, the questions and the fieldwork were done.

The 2016 post said that courts in the United States, Canada and the United Kingdom had seen a drastic increase in accepting this kind of evidence, and that survey research had become prevalent in Caribbean trademark disputes. The judgments do not bear that out.

In Canada, the Supreme Court in Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, treated the survey as unhelpful. It had tried to stage a shopper's imperfect memory of a mark when no such memory was available. The Court told judges to question whether expert and survey evidence is necessary and relevant, particularly where the cost is high and the evidence may be of little use ([CanLII, 2011](https://www.canlii.org/en/ca/scc/doc/2011/2011scc27/2011scc27.html)).

In England and Wales, Marks & Spencer plc v Interflora Inc [2012] EWCA Civ 1501 rejected the practice of admitting survey evidence unless a judge could say it was worthless. Even where the evidence is technically admissible, a judge should not let it in unless it is likely to be of real value, and unless that value justifies the cost. The reliability of the survey is part of the test ([National Archives, 2012](https://caselaw.nationalarchives.gov.uk/ewca/civ/2012/1501)).

In the United States, the checklist in the 2016 post is Judge Glasser's list from Toys "R" Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F. Supp. 1189 (E.D.N.Y. 1983). The conditions in that list include interviewers who are competent, follow sound procedures and do not know the purpose of the survey or the litigation ([OpenJurist, 1983](https://openjurist.org/559/fsupp/1189/toys-r-us-inc-v-canarsie-kiddie-shop-inc)).

In 2013-14, Balcostics Limited carried out a confusion survey. Respondents were shown two marks. They said whether they thought the same company or different companies owned them, why they thought so, and which company or companies they named.

Courts that are asked to rely on a survey look for signs that it was done properly. The checks in the 2016 post were these.

- Enough of the right people were interviewed.
- The design could separate confusion caused by the questionnaire from confusion caused by the marks.
- The questions did not lead the respondent.
- A portion of respondents were called back to check that their answers had been recorded as given.

## Five points for a confusion survey

Interview the right universe. The people questioned have to be the consumers who meet those marks. Identification of that universe is critical. Interview the wrong people and the result is irrelevant to the dispute.

Have a person who can defend the sample, the questionnaire and the fieldwork. Hiring that person is one of the important decisions in the dispute.

Design the sample, write the questionnaire and conduct the interviews to accepted standards of survey practice and statistics.

Keep the attorneys out of the sample design and out of the interviews. Those steps are done independently of the lawyers in the matter.

Use interviewers who do not know the litigation or the purpose of the survey. That is the condition Judge Glasser set out in Toys "R" Us, and the condition the fieldwork in that case failed.

## Updated October 2026

- Removed the claim that US, Canadian and UK courts had all grown much readier to accept surveys, and the claim that the method was already prevalent in the Caribbean. Cited Masterpiece (2011), Interflora (2012) and Toys "R" Us (1983).
- Dated the Balcostics confusion survey to 2013-14, from the project record, in place of "two years ago". The 2016 post did not name the client or the sample size, and neither is added here.
- Removed the services advertisement and the law@balcostics.com address. The joke that Balcostics was the obvious expert was cut.


Source: https://balcostics.com/blog/trademark-surveys/