Opinion poll as a tool for maintaining a trademark

Considering the concept of “trademark”, which is interpreted as “a designation used to individualize goods,” it should be noted that individualization occurs primarily by the consumer. A trademark should increase recognition, stimulate growth in sales of goods and services for which it is used to individualize, and, consequently, increase the profit received by the copyright holder. If all links in this chain are effective, then commercial activity will flourish.

The consumer is the final recipient of the product or service. The choice of a particular product (service) is associated with a large number of selection criteria that are taken into account. For each individual consumer, the set of significant and less significant criteria is different. However, consumer awareness of a specific product can exist even in the absence of the direct fact of purchase. For example, a consumer knows a specific premium brand, but does not have the financial ability to purchase products under that brand.

When considering controversial issues regarding trademarks, the consumer's opinion is taken into account by conducting a sociological survey. A sociological survey is a type of sociological research focused on studying the prevalence among a strictly defined population (general population, audience) of typical individual ideas, attitudes, values, opinions, knowledge, behavior and life circumstances.

A sociological survey can be conducted in the following cases to assess:

• the presence or absence of actual confusion between a designation and a trademark;
• semantic, visual, phonetic perception of the designation, which can subsequently be taken into account when determining the similarity of designations, for example, the perception of a complex word by the consumer as having certain roots/parts;
• the degree of awareness of consumers about the declared designation and about the manufacturer of the goods marked with it when assessing the acquired distinctiveness;
• well-known designations when the mark is recognized as well-known;
• the entry of a designation into general use for a product of a certain type;
• the emergence in the mind of the consumer of the idea that goods belong to one manufacturer in order to establish the homogeneity of goods (services), etc.

A sociological survey can be provided to each of the parties to the case, since its conduct can help prove or disprove the position.

Requirements for conducting a sociological survey

Among the requirements for the organization conducting the survey are specialization, independence, and lack of interest. Typically, such organizations are research institutes, companies and other independent and impartial experts.

The requirements for the survey are as follows. A consumer opinion survey must first of all comply with professional standards in the field of sociology, that is, it must be conducted on the basis of generally accepted sociological methods and instructions established by the organization conducting the survey (ISO, GOSTR ISO, etc.). As a rule, the document consists of an introductory part (description of the goals, objectives of the study), a description of the study (methodology, target audience, sample, geography of the study, etc.), survey results and conclusions of the organization that conducted the survey. The study is also accompanied by a sample questionnaire and other supporting materials (for example, cards with symbols, instructions for completing the questionnaire for respondents). The field stage of the survey can take place in the format of an interview or in the format of a self-filled questionnaire by respondents.

When presenting a consumer opinion survey conducted using a telephone, it should be taken into account that such a study is limited to phonetic perception of symbols. This method is generally suitable for determining the circumstances relating to most verbal designations, but cannot be applied to figurative, volumetric or combined designations.

The assessment of the survey results should not contain legal conclusions, which is the competence of the authorized body (Court or Rospatent). It should be borne in mind that the results of a sociological survey cannot be specific; they only reflect the range of possible values. Therefore, it is important to pay attention to the boundaries of the range, and not to point values. In each case, certain ranges are considered in relation to the problem posed, taking into account all the circumstances of the case, in relation to the various questions of the questionnaire and with other evidence.

The elements of the survey by which the methodology for conducting it is assessed are the following:

• circle of respondents - a sample from the target audience that participates in the survey. The total number of potential consumers is the target audience, which is limited depending on the characteristics of the trademark, the goods and services being studied (by age, gender, profession, geography, etc.). The sample as a subset must remain representative of the target audience as a population. The number of respondents in the sample does not affect its representativeness, but should be statistically significant . According to professional standards in sociology, for most cases the sample size is set between a minimum limit of 400 people and a maximum limit of 2000 people. These values, however, vary on a case-by-case basis.
• geographical distribution of respondents. A sufficient geographical distribution of respondents across the territory of the Russian Federation is especially important for surveys of consumer opinion regarding designations recognized as well-known trademarks on the territory of the Russian Federation. In more detail, the Recommendations for conducting a sociological survey of consumers on the issue of well-known trademark in the Russian Federation are reflected in the Order of Rospatent No. 74 dated 06/01/2001. The minimum number of surveyed respondents specified in paragraph 3.4 of the Rospatent Recommendations, allowing one to draw a conclusion about the objectivity of the survey (at least 500 in two settlements and less than 125 in each other settlement), is indicative in nature.
• the presence of qualifying (screening) questions to form a target group. According to sociologists, to study consumer opinions regarding goods, it is advisable to divide them into durable or everyday goods. To identify consumers of the first category, it is advisable to use a screening question, which will allow you to record the fact of purchase for a certain period; for the second category, it makes sense to determine the frequency of purchases. In the latter case, this will exclude consumers who accidentally bought a certain everyday product. The quality of the sample of respondents, which should represent an ordinary, average consumer, depends on the effectiveness of this stage.
• an indication of the goods/services in respect of which the survey will be conducted, usually indicating the items for which the trademark is registered.
• time parameters that should determine the circumstances on the date that is relevant to the case under consideration. The survey can be conducted at the present time or retrospectively. When assessing the results of a survey that is carried out at a retrospective date, it is important to check how well the target audience met the selection criteria for the study at that time, for example, by age.
• wording questions is a very important component of a survey. The results of the study depend on the questions. Questions should be clear, clear, objective and consistent with the goals and objectives of the study. Questions should not be leading or contain abbreviations not covered in footnotes. Please note that long questions with a large number of conditions (use of “if, in that case, etc.”) may be viewed critically. Questions can be open (without answer options) or closed (with answer options). Answer options should logically correspond to the question asked, and not distort it.
• the use of cards with images of trademarks allows respondents to familiarize themselves with the objects of research and express a subjective opinion. On the cards and throughout the survey, the trademark must be presented as registered for the most objective assessment. The use of cards is especially important in surveys regarding combined and figurative trademarks, since in this case the assessment by visual criterion is important.

All of the above elements form the sufficiency and effectiveness of the survey. If the research methodology and its components do not contradict each other and meet the goals and objectives, then the use of such a survey can significantly strengthen the position of the copyright holder in the case. The analysis of a sociological survey from a legal point of view is carried out by a specialist representative of the interests of the copyright holder; it is very important to use the survey results to support your position.