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How to Survive Lanham Act Survey Submissions

Avoiding Survey Daubert Challenges

Survey standards are set forth in Fed. R. Evid. 702 and Fed. R. Evid. 403. Rule 702 which codifies the Daubert requirement for admissibility of scientific evidence. Rule 403 allows a court to exclude evidence if its probative value is substantially outweighed by a danger of “unfair prejudice, confusing the issues, or misleading the jury.”

Although courts will often allow experts to testify even if the report appears to contain errors, courts frequently hold these errors against the weight of the opinion, not its admissibility, and expect counsel to expose the errors for the jury during cross-examination. However, where the errors in a survey are too fundamental or too pervasive, courts often exclude surveys under both Fed. R. Evid. Rule 702 and 403.

Therefore, one must carefully select the correct survey methodology, universe of respondents, stimuli, and questions. In addition, it is necessary to followof the guidelines to accurately describe the survey, reports coding, and analysis.