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Surveys in trademark, trade dress, and false advertising cases often focus on liability. For example, in trademark cases, the focus of survey evidence has often been on whether consumers confuse the two marks. Similarly, survey evidence in false advertising cases has focused on whether the at-issue advertising claim misleads or deceives consumers. Surveys that address these issues of alleged confusion or deception measure consumer “perception,” and the results are often the centerpiece of a plaintiff’s liability arguments. While such questions may be central to cases that seek an injunction or aim to prevent the issuance of a new trademark, they are less relevant in questions of impact or injury.
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