Using numbers to win your case

By Michelle Mancino Marsh, Anne Elise Herold Li and Daniel Shea

Trademark cases can stand or fall on survey data that demonstrates the likelihood of confusion and actual confusion – the crucial issue is not just what type of data is collected, but how it is presented.

There is an art to presenting evidence in any forum. This is especially true of statistical evidence, which is highly technical and can be difficult to understand. However, it does not have to be this way. Even the most complicated statistics can be presented in a clear, compelling manner. The most powerful way to present data is in a way that requires little or no explanation. Otherwise, people may think they are being tricked. Mark Twain is quoted as saying: “There are lies, damn lies and statistics.” People tend to have a similar belief when numbers are presented poorly. However, just as people have read and re-read Twain’s stories because they are so compelling, your fact finder will find your case compelling if your narrative is – especially when it is supported by strong statistical analysis. When the numbers are presented in such a way that people can tell the story themselves, they have a tendency to give those same statistics the weight of absolute truth.

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Issue 74