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In today's legal climate, attorneys and market researchers know that surveys frequently play a pivotal role in successfully resolving trademark, advertising and related legal disputes. Competent and convincing expert witnesses are a vital part of cases involving economic damages, financial calculations and other issues relating to your brand of company.
Litigation research is a rapidly growing area as companies are more and more likely to file suits against competitors for false advertising and trademark infringement. Some of the legal areas for which marketing research is often requested include the issues of:
- Trademark and Trade Dress (secondary meaning and likelihood of confusion)
- Advertising claim support such as taste tests
- Landham Act (trademark) cases
- Trademark dilution, and
- Anti-trust cases such as restraint of trade, all for which litigation expertise is necessary
 Though our CaseWork™service, The Marketing Workshop, Inc. conducts studies to be used, or expects to be used, in litigation.
As an experienced litigation researcher, CEO Jim Nelems has prepared over 70 expert witness reports, been deposed, and testified in dozens of cases of intellectual property research: in state and federal courts, in Lanham Act cases, the FTC, the Trademark Trial and Appeal Board (TTAB) as well before arbitration panels such as the National Advertising Division of the Better Business Bureau.
The rules of marketing research used as forensic evidence are often different from research used in normal business practices. First, one has to get the research accepted into evidence, and not seen as hearsay. Although it is generally accepted by the courts that marketing research is an exception to the hearsay rule, research is often inadmissible into evidence. For example, while an expert witness can testify against research done by someone else (to point out how that research violates the research rules of evidence, for example), a researcher CANNNOT testify on behalf of someone else's research – because THAT would be hearsay. Also, preferred research can be so bad (“fatally flawed” is the legal term) that the judge will not even accept it into evidence in the first place.
Once admitted, the weight of the evidence of the research by the judge or jury is based on nine key factors: (1) the proper universe is selected (2) a representative sample is drawn from that universe (3) the methodology is sound (4) the statistics are appropriate (5) questions are properly asked (6) data were accurately reported (7) proper conclusions are drawn from the data (8) the research was conducted in an objective fashion and (9) the person conducting or supervising the research is a recognized expert .
Researchers in the courtroom may also face difficulties in explaining marketing research procedures to a jury, using terms many have never heard of: product rotations, sampling error, the universe, statistical significance, etc. Often this can be done by analogies: for example, to explain a representative sample, talk about a political poll that interviewed too many Republicans (or Democrats) in relation to their proportion to the population which would incorrectly predict who might win the presidential election. Or use an example of a biased questioning sequence (only slightly changed from the actual question): "Have you ever heard of Chevrolet?" IF YES: "Do you think Chevrolet might have any association with the car you are looking at?" (obviously a leading question)
Even the most qualified marketing researcher can be tripped up on cross-examination unless that researcher really knows trial procedures, such as being fully prepared for any marketing research question that might be asked (to prove the ‘expert' is indeed a qualified expert in the field). Never volunteer information, and answer only the question that is asked.
A list of cases and references are available upon request through
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