This Article is a comprehensive examination of the use of consumer surveys in trademark litigation cases at the federal level. Previous research has shown consumer surveys can be critical to the outcome of trademark litigation, as they measure the idiosyncratic mental associations and reactions of prospective consumers. For this Article, this study examined 843 trademark infringement and dilution cases spanning 2007 to 2017. The findings reveal consumer surveys are not utilized in trademark litigation as often as research suggests they should be. While consumer surveys are not required in trademark litigation, nor necessarily easy or inexpensive to com- mission, this study shows there are situations where it may be most prudent to produce survey evidence.

This study in this Article also provides insight into the potential impact of consumer surveys on the outcome of both trademark infringement and dilution cases in sports. As instances of trademark infringement and dilution are on the rise, sports apparel brands are actively trying to defend themselves against consumer confusion. In most cases, the findings indicate plaintiffs should seriously consider conducting consumer surveys during litigation, as the potential impact of losing a trademark infringement or dilution case could cost the plaintiff its trademark and, ultimately, its brand.