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In trademark cases, online surveys may be admissible as evidence; however, they must be properly designed and free from methodological flaws that may otherwise undermine their validity and reliability. In PIM Brands, Inc. v. Hershey Chocolate & Confectionery LLC, the Federal Court of Appeal (FCA) confirmed that the absence of an in-person observer inherent to any online survey is not a basis for excluding an online survey.
PIM had sought to register the marks SWISSKISS and SWISSKISS & Design for Swiss-originated chocolate. Hershey opposed the applications based on its registered KISS and KISSES marks. Both sides filed competing online survey evidence before the Federal Court. The Federal Court declined to admit the survey evidence on validity and reliability grounds.
The Federal Court had rejected PIM's surveys on three grounds: (i) a priming bias from repeatedly referencing "Swiss chocolate" in the survey questions; (ii) a possibility that participants could use their browser's "back" button to re-view the mark after its timed removal; and (iii) a broader concern that online surveys lacked a "person in the loop" to verify respondent identity and independence.
The FCA upheld the Federal Court on the first two grounds. On priming bias, it agreed that systematically framing questions around "Swiss chocolate" would predictably steer respondents away from non-Swiss manufacturers like Hershey, particularly given that there was no evidence that Swiss chocolate occupied a distinct product category. On the "back" button issue, the FCA noted that the affiant could not confirm whether the survey respondents would be able to undo the mark removal by utilizing the browser's "back" button and view the mark again because the affiant had only tested the beta version of the survey, and not the live online version.
On the broader "person in the loop" concern, however, the FCA departed from the Federal Court's reasoning. The FCA held that the Federal Court went too far in treating the inherent features of any online survey as a basis for exclusion. It noted that telephone surveys are vulnerable to the same criticisms but are routinely admitted by the courts. The FCA held that online surveys, like any other type of evidence, should be assessed on a case-by-case basis and should not be categorically excluded.
Ultimately, the FCA characterized this error as non-determinative. The other grounds, namely, priming bias in question design and untested controls over mark exposure, supported the Federal Court's decision to reject the surveys.
A copy of the decision is available here.
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