미국 상표소송에서 설문조사의 활용 현황 분석

The Analysis of the Present State of the Use of Consumer Survey in Trademark Litigation in the US

Given the essential function of a trademark to help consumers identifying the commercial source, consumer recognition may be crucial and important basis in judging many issues in trademark litigation such as likelihood of confusion or secondary meaning. From this point of view, a consumer survey evidence can be used as an actual proof in trademark litigation. In the US, many formats of consumer survey have been used and employed increasingly in trademark litigation in general. Many courts have a standpoint that, while technical deficiencies such as inappropriate universe or methodological flaw in a survey can reduce its weight, they will not prevent it from admission into evidence. And a consumer survey is thought to be able to provide important and persuasive evidence especially on likelihood of confusion or secondary meaning. Unlike the US, it seems that courts are reluctant to admit a consumer survey as probative evidence in trademark litigation in Korea. However, to enhance demonstrativeness, a turnaround approach is needed to admit a consumer survey into evidence, if it sufficiently reflects the actual marketplace conditions or the actual state of mind of members of the appropriate universe. Futhermore, especially in a case where a court cannot gain a confident belief, it can be considered that the court takes a leading role in executing a consumer survey.