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How to do an IP Survey without Giving Away the StoreThere is a widely held myth that doing surveys for IP litigation cases is dreadfully expensive. That simply is not so — but it does require the attorney to possess awareness and knowledge of the survey process. Surveys can indeed be expensive in some cases, but in other cases they can be extremely reasonable. The key is to understand:
In general, consumer surveys for products marketed to the general population are inexpensive. Also, telephone surveys to targeted markets that are easily reachable are likewise inexpensive. Costs accelerate when target markets become smaller and more difficult to access. Mall intercept and telephone surveys are the least expensive. Pre-recruit surveys tend to be the most expensive. On-location research need not be terribly expensive but it requires larger incentives and cumbersome approvals. Telephone/Internet combination surveys tend to me more pricy because the respondent needs to be able to access the Internet and go to a Web site. Pure e-mail/Internet surveys are moderately expensive but incur additional costs because of the need to design a Web site, and low response rates require a larger investment in list acquisitions. What is being referred to as “expensive” and “inexpensive” is your basic, cookie-cutter survey using generally accepted protocol templates. When one diverts from these models and enters the extraordinary, costs can accelerate. The elements that go into a survey are the following:
The survey expert’s professional fees are a function of the expert’s hourly or assignment rate. There is a wide variation. They may range as low as $250 per hour and as high as $600 per hour. For that reason, anticipated costs can have wide ranges. The other elements of the cost equation are fairly constant. Following are the costs one can anticipate for routine surveys:
A Word of Caution: Cost estimates by this author are based on his personal frame of reference and his personal experience with other survey experts. Actual costs may vary depending on who is selected as the survey expert who will be responsible to develop, manage and report on the survey. Another variable is the specific problem or opportunity that is studied. Finally costs can vary depending on sections of the country where the research is done. If one decides to do a survey, one should proceed carefully. A pilot study is mandatory when time permits. By doing the pilot study, one can predict, with some certainty, eventual results. If those predictions fall within the guidelines of “success” or “failure” a decision can be made to whether to roll out or abandon the study. While abandoning a survey might mean that a relatively small sum might be wasted, producing a survey with poor results or, what’s worse, results that help your adversary can be disastrous. It’s also important to interpolate survey results as to the damages involved in the case. Even if you can prove confusion, for example, the dollar amount of damages based on that level of confusion might be minimal when projected into the damage model. In such a case, the survey not only costs money to undertake but the results can undercut the eventual ruling or settlement. Do not expect your survey expert to be knowledgeable of the legal issues of the case. That is the task of the attorney. The survey expert should know surveys, marketing, social science, etc., but not the nuances of the Lanham Act or other legal issues relating to confusion, dilution or other technical legal issues. Thus, in addition to controlling the client’s purse strings, the attorney must provide direction to the survey expert. That’s not to say the attorney should create survey questions, but the attorney must know what evidence is needed and what should be done with the evidence produced by the survey. |
Common Types of IP SurveysFollowing are the most common types of IP surveys: Mall Intercept: Respondents are recruited by research centers within the mall. Respondents are given an incentive to participate in the survey, which is generally administered within the offices of the research center. Ideal for consumer package goods or other products and services routinely purchased by a large percentage of mall shoppers. Telephone: The researcher telephone potential respondents, screens them and administers the questionnaire over the phone. Usually no incentive is needed. Pre-Recruit: Potential respondents are selected based on very specific criteria and are recruited to come to a research center at a particular time to participate in the survey. Larger financial incentives ($50 or more) are needed to bring people into the research center. On-Location: Usually done at a specific kind or store, trade meeting, convention, etc. where large percentages of targeted subject congregate. Incentives needed as well as approvals to be able to interview on premises. Telephone/Internet: Same as the telephone interview, but the research requires the subject to be at a computer where they subject can access a Web site. This permits the showing of visuals to the subject. Frequently, the subject is not at the computer when he/she answers the phone and this requires a second call to be made at a prearranged time. A small cash incentive may be needed or an incentive such as the entering of the respondent in a drawing may be required. E-Mail/Internet. The subject receives an e-mail inviting him/her to participate in a survey. A cash and/or drawing incentive is needed. The subject fills out the survey on-line and clicks to submit. Tabulations are done instantly on-line and by providing name, address, phone number and e-mail number information, validation is greatly simplified.
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