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Limits and Considerations in Control Groups
Control groups have become an almost required element in trademark surveys. Survey methodology, however, derives from the field of sociology and political science where there was no such concept of 'control' groups. The studies were designed to be descriptive of a phenomenon. As such, the surveys contained no 'controls,' but could still none the less offer useful information. The political polling of today is such an example. Surveys used for intellectual property purposes have been heavily influenced by the field of experimental psychology, from which the concept of the 'control' emanates. The typical understanding of how a control group operates is that one group or cell receives a test stimulus and the other the control stimulus. The control stimulus is similar to the test but absent the alleged infringing aspects. The difference between their results reflects the 'net' confusion level, test minus 'noise.' This definition, however, fails to tell the full story that control groups may not always be needed, and, when needed, may not solve certain aspects of noise or biases merely by their presence.
For a control group to operate effectively, it is best to specify the exact hypothesis that one is positing is causing 'noise' and to design the study to control for that factor explicitly. For example, in a 'squirt study,' where an array of products is shown sequentially, a hypothesis may be that any products shown in such a sequential array would cause a certain level of measured confusion. If this is one's only reason for employing a control, then it would be clear that an 'Eveready study' (which does not present a sequential array) would not require a control. The point is simply that counsel must understand in advance what the hypothesis or hypotheses are for requiring a control group in order to understand whether the control is needed and valid.
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The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
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A Lawyer's System for Active Reading
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Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.