Survey Evidence in Trademark Law: Use and Evidential Value in the United States and Turkey

Surveys are important tools for evaluating public perception of trademarks. However, they carry various criteria to ensure methodological accuracy and their admissibility as evidence. These criteria include the proper formulation of questions, appropriate selection of the relevant public, and meticulous execution of the survey process. Additionally, supplementary measures should be established concerning the interpretation of survey data into a report. In American trademark law, surveys play a critical role, especially in determining likelihood of confusion, distinctiveness, genericness, and dilution claims. American courts, under the Lanham Act and the Federal Rules of Evidence, prescribe strict standards for the admissibility of survey evidence as expert testimony. In contrast, the use of survey evidence in Turkish trademark law is more limited compared to American law. In Turkish law, surveys can be used in disputes involving distinctiveness, determination of well-known status, and likelihood of confusion. Courts should prioritize surveys that focus directly on the views of the relevant public over expert reports based solely on the subjective assessment of an individual or a panel in trademark disputes. Particularly, greater emphasis should be placed on the survey method as evidence, which is frequently utilized and standardized in trademark and competition law in the United States, Germany, and Switzerland. The primary aim of this study is to examine the methodological criteria that surveys must possess in trademark law, their areas of use, and their evidential value. In this context, comparative legal research will be used as the main data collection method; guidelines and decisions of international and national institutions, court decisions, and opinions in the doctrine will be consulted.