Commissioning and Attacking a Trademark Survey: A Litigator's Guide to Design, Universe, and Daubert
By Casey Scott McKay ·
This guide walks a litigator through commissioning a trademark survey and through dismantling the other side's, stage by stage, from the retention letter to the motion to exclude. It covers structuring the engagement so that Federal Rule of Civil Procedure 26(b)(4)(B) and (C) actually protect what you think they protect, drafting the screener that operationalizes the legal universe, building a stimulus that survives a realism attack, designing a control that isolates one variable, running a pilot before anything becomes discoverable, and locking a written protocol that documents blinding, coding, and data-quality screens. It then turns to the paperwork: the Rule 26(a)(2)(B) report and the six things it must contain, the backup production list, respondent anonymity, and the privilege log. The second half is adversarial — a ten-topic deposition outline with model questions for the survey expert, the rebuttal-expert decision, and a Daubert skeleton built on the three grounds that actually win, plus the opposition playbook and the December 2023 amendment to Rule 702. It closes with TTAB survey practice and its separate expert-disclosure clock under 37 C.F.R. § 2.120(a)(2)(iii), emergency preliminary-injunction schedules, a full cost-and-timeline table, and an honest account of when to spend the money on something else.
IP and Technology > Trademarks | Guide | Published 19 November 2024 - Updated 27 February 2026 | Casey Scott McKay - marksy.us
Summary. This is the operational companion to the survey doctrine: how to actually commission a trademark survey, and how to take one apart. It runs from the retention letter through the motion to exclude — structuring the engagement so Rule 26(b)(4)(B) and (C) protect what you think they protect, writing the screener that turns a legal universe into a fielded sample, building a stimulus that survives a realism attack, designing a one-variable control, piloting before anything becomes discoverable, locking a written protocol, producing the backup data, and drafting the Rule 26(a)(2)(B) report. The second half is the attack: a ten-topic deposition outline with model questions, the rebuttal-expert decision, a Daubert skeleton built on the three grounds that actually win, and the opposition playbook after the December 2023 amendment to Rule 702. It closes with TTAB practice and its separate disclosure clock, emergency preliminary-injunction schedules, a full cost-and-timeline table, and when to spend the money on something else.
Keywords: trademark survey protocol · survey expert retention · rule 26(b)(4) work product · expert report rule 26(a)(2)(b) · survey universe screener · survey control cell · pretest and pilot survey · survey backup data production · deposing a survey expert · daubert motion survey · motion to exclude survey · net confusion calculation · ttab expert disclosure · 37 cfr 2.120 · survey cost and timeline · preliminary injunction survey · double-blind survey administration · verbatim coding codebook · online panel data quality · when not to run a survey
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