As the Supreme Court’s recent ruling in the Victoria’s Secret case acknowledged, many intellectual property (IP) cases will turn on consumer surveys. Such surveys are often essential to demonstrate trademark dilution (of the sort discussed in the Victoria’s Secret case), and are often the best way to estimate damages in a patent or trademark infringement case.

However, many litigants in IP suits are shortchanged for lack of a properly constructed survey—either receiving too little as plaintiffs or paying too much as defendants. A common failing of many surveys is their inability to provide rigorous estimates of how an infringing product can alter market prices and competitors’ market shares. In this article, Dr. Alan Cox argues that one type of consumer survey, choice modeling, does provide such estimates and can make a significant difference in the amount of damages awarded.

This article was published in the April 2003 issue of IP Value Commentator, an IP newsletter available at www.ipnewsletters.com.