Author: Robert H. Thornburg
Abstract Surveys have been used in jurisdictions outside the Ninth Circuit to test whether a purported trade dress element is functional. Thus, survey evidence has been employed in almost every aspect of trademark law.
The Ninth Circuit’s uniqueness with regard to trademark surveys is based largely upon its almost “carte blanche” refusal to exclude survey evidence based upon technical deficiencies. Unlike other circuits, the Ninth Circuit has pronounced that a survey’s “[t]echnical unreliability goes to the weight accorded the survey, not its admissibility.” A district court’s exclusion of a trademark survey due to unreliability often creates reversible error, as the Ninth Circuit has stood firm that such discrepancies should be evaluated by the fact-finder. Thus, issues relating to potentially leading survey questions or improperly limited geographic area in which the survey was conducted only go to the survey’s overall value. This is directly opposite to most other circuits, where technical irregularities lead to a finding of inadmissibility. In analyzing what “weight” to give a trademark survey, courts within the Ninth Circuit look towards a variety of factors, including, but not limited to the overall survey design and experience of the surveyor.
Based upon the unique treatment and use of survey evidence within the Ninth Circuit, this paper provides a comprehensive review of current trends and issues inherent to performing a trademark survey for use at trial. Specifically, this paper seeks to articulate the pitfalls of the past and highlight the importance of preparation prior to introducing a trademark survey into evidence. Part I of the paper provides a general background relating to preparing trademark surveys within the Ninth Circuit, with emphasis on treatment of non- litigation surveys. Part II outlines the pitfalls associated with conducting secondary meaning surveys and how to properly quantify the relevant survey universe. Part III discusses the use of survey evidence to test consumer confusion and the general result required to find a likelihood of confusion. Part IV discusses use of survey evidence to show whether or not a mark is generic. Part V comments upon the general distrust within the Ninth Circuit for surveys testing actual dilution. Part VI provides a general conclusion and overall remarks of the future role of survey evidence within the Ninth Circuit.
| | circuit confusion consumer court evidence ninth plaintiff secondary survey trademark
Volume 21 Issue 4 Page 715
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Authors: Frances E. Zollers , Andrew McMullin , Sandra N. Hurd , and Peter Shears
Abstract This is not a tale of robots gone wild or other stuff of science fiction. Rather, this is about real-life situations that have occurred or are likely to occur. It is about software failure when that failure leads, not to system crashes or botched tax returns, but to serious physical injury to persons. The power of software can be seen everywhere: It flies airplanes, monitors medical patients and nuclear power plants, and even helps us drive our cars. Indeed, software is no longer confined to the domain of business systems that control inventory, issue payroll checks, and keep track of accounts receivable and payable. It extends beyond the desktop computer with its word processing and data management capabilities and now routinely interfaces with human beings in their daily lives and in unseen ways. The consequence, however, is that some software can cause physical injury if it is defective. While many early commentators have speculated about the liability regime when such a condition occurs, it is now time to take stock of how the law is developing and should develop when software foreseeably causes physical injury.
The discussion is timely for a number of reasons. First, there have been sufficient numbers of instances of software failure that have caused physical injury to cause serious concern, and the number can only grow, given the pervasiveness of software in our daily lives. Second, the software industry is no longer in its infancy. Its development has moved out of garages and into corporate offices. It has matured to become a dominant sector of the economy. Consequently, it is appropriate to consider liability for defective software in the same light as liability for defective automobiles, pharmaceuticals, and other products.
This article will first examine the characteristics of software and its evolutionary creep into our lives in Part II. In Parts III and IV, we will review the literature about software litigation and the eras through which it has progressed. Part V reviews the origins of strict product liability and the policies underlying it to determine whether software, which has hitherto enjoyed immunity from strict liability, fits into the strict liability context. Lastly, in Part VI we argue for the adoption of a strict liability regime for software failure that produces physical injury and offer supporting arguments for why such a move is both necessary and sensible.
| | case chart computer court injury liability product software strict system
Volume 21 Issue 4 Page 745
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