Book Review – Trademark Surveys: A Litigator’s Guide

Trademark Surveys: A Litigator’s Guide, by James T. Berger and R. Mark Halligan. Oxford University Press, 2012, 304 pages inclusive of appendices. Softcover, $225, ISBN 9780199740635.

Marketing professional and college instructor James T. Berger has amassed 20 years of experience in the field of trademark. Specializing in market surveys with his consulting firm, Berger brings a wealth of knowledge and insight to this book. Berger’s co-author, R. Mark Halligan, is an excellent addition, bringing his own unique knowledge on the topic of trademark surveys from years of being a trial lawyer and an experienced litigator in the areas of patent, copyright, trademark, and trade secrets. Readers like myself, who approach this title without any knowledge whatsoever about the use of trademark surveys, will learn much from the authors and will leave with a greater understanding of the topic.

Covering 12 chapters, Trademark Surveys is an easy-to-read and easy-to-understand guide for those not steeped in the lingo of the topic. Chapter three, Types of Surveys and Protocols, is perhaps the most informative chapter of the book. The chapter is an excellent example of the manner in which the authors adequately present the material with great descriptions and with great anecdotes and examples of past cases in which they participated. Berger and Halligan in great detail describe the process of creating numerous types of consumer surveys and the considerations to take into account when implementing those surveys. Litigators desiring to use trademark surveys should first go through the process of defining the actual problem that is being faced. By first defining the problem, litigators may then pursue the necessary research materials and data sampling techniques in order to address all hypothetical situations.

Deciding which type of survey to utilize is an important decision, and the authors do a great job explaining the pros and cons of the most used types of surveys in the field. Though popular in the past, direct mail surveys have lost favor due to their costly nature and being seen as junk mail by most individuals. Telephone surveys provide a simpler mechanism for litigators as pre-made lists of individual phone numbers may be easily purchased. Mall intercept surveys, whereby individuals are approached in a public setting, can prove costly as visuals are needed to put before the individuals being surveyed. Internet surveys, while growing in popularity due to their convenience and instant tabulation, still pose problems as it is difficult to truly know who takes the surveys.

Seven appendices covering 27 pages along with a table of cases complete this book. Each of the seven appendices provides an example of a prepared survey ready to be distributed and filled out. The example surveys include a script to follow for both telephone and face-to-face surveys along with directions to the individual conducting the survey.

As one who knows little to nothing about trademark surveys, I found Berger and Halligan’s work to be easily readable and understandable. Trademark Surveys: A Litigator’s Guide would be an excellent resource for those who desire in-depth introductory material along with helpful examples of surveys at their disposal. Its price may give law school libraries pause. It may be better suited for purchase by law libraries in firms with extensive practice in the trademark field.

Stephen Parks, J.D., is the research, instructional services, and circulation librarian of Mississippi College School of Law Library in Jackson.

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