David Takes on Goliath: An Analysis of Survey Evidence in a Trademark Dispute

Abstract

Anheuser Busch, the brewers of Budweiser, sued a Czech brewer alleging that its beer brand, Budejovicky Budvar, created confusion in the marketplace and breached New Zealand consumer protection legislation that prohibits misleading and deceptive conduct. The case brought against Budejovicky Budvar included a survey of beer consumers and this was central to the action. This paper explores the robustness of the survey by evaluating its methodology in terms of the four errors that affect survey research: coverage error, measurement error, sampling error and non-response error. In each area, the survey adduced contained serious flaws that undermined its validity. Ironically, these flaws were largely avoidable. An alternative survey design that draws on past cases and empirical generalisations in question wording is proposed. While untested in court, this design takes greater cognisance of issues regarding forensic research that have been raised internationally. More attention to these issues should reduce the vulnerability of surveys to criticism and help ensure that the relevant public's voice is better represented in actions that allege consumer confusion.