Issues arising in using samples as evidence in trademark cases

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.