Surveys of potential consumers are frequently used in trademark legal battles to prove various aspects of a trademark's legal viability. For example, a survey may be useful to prove that a mark has acquired secondary meaning, that it is not generic, is non-functional, legally strong, or is not likely to confuse consumers with regard to an existing trademark. Surveys can also be used to prove a plaintiff's lost profits, which is evidence that is notoriously difficult to obtain without a survey.
Independent survey firms are used to prevent the appearance of impropriety and bias of the survey data. According to Phyllis J. Welter, an expert on trademark surveys, use of surveys in trademark litigation has grown from roughly 5.6% in the 1950's to over 12% in the 1980's. Ms. Welter's book, Trademark Surveys, published in 1998 by West Group, is an excellent source of information on how to utilize surveys in trademark litigation.
