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Publication Date

2019

Abstract

In trademark infringement litigation, courts often rely
on consumer surveys that use the “Ever-Ready” method
to measure consumer confusion. Courts are
understandably careful to scrutinize consumer surveys
for ways in which their methodology might have biased
their results toward the outcome desired by their
proponents. This Article strengthens and improves such
examinations by empirically testing and improving the
Ever-Ready method itself.
The findings of four new empirical studies reported in
this Article indicate the faith placed by the courts in the
Ever-Ready method is somewhat misplaced. Seemingly
subtle variations in the wording of the Ever-Ready
questions have a consistent and surprisingly large
influence on the survey’s final results.
Fortunately, the four empirical studies also give clear
guidance on how to repair and standardize the question
wordings. Two versions of the Ever-Ready method—one
version to be used in surveys proffered by plaintiffs and
another version to be used in surveys proffered by
defendants—are defined and verified based on data
from the four studies. The two versions are “known” in
the sense that they are defined empirically and
published to the community, and “conservative” in the

sense that they cut against the direct interests of the
survey’s proponent.
The standards set by these known-conservative
versions of the Ever-Ready method will empower the
courts and a survey’s opponents to scrutinize (in a
rigorous, consistent, and systematic manner) the extent
to which the question wording in an Ever-Ready survey
is slanted toward the proponent’s desired outcome.
Anticipating such scrutiny, experts will have a powerful
incentive to adopt the known-conservative versions that
are identified in this Article. The expected end result is
greater reliability for expert testimony, with a particular
emphasis on preventing parties from bolstering weak
cases with methodological artifacts.

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