Survey Stimuli Springs a Leak in Garden Hose Turf War

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Survey Stimuli Springs a Leak in Garden Hose Turf War, Op. 1, No. 42

Survey stimuli presented to respondents should reasonably replicate the manner in which consumers encounter these articles in the marketplace. Although this is a straightforward standard to articulate, often times experts and their counsel hit blockage in the process.

This post provides a note of caution based on a recent case involving survey evidence developed in a garden hose trade dress dispute. Weems Indus., Inc. v. Teknor Apex Co., No. C20-108-LTS, 2024 U.S. Dist. LEXIS 210959 (N.D. Iowa Nov. 20, 2024).

Plaintiff claimed it owned trade dress rights in a greenish-colored garden hose. The hose is sold under the brand name "Flexzilla," and the named is splashed about both the packaging and the hose itself:

Defendant offers two hose products that allegedly infringed on Plaintiff's green hose trade dress, the "Nexflex" and the "zero-G Pro":

Plaintiff offered two "Squirt" surveys to show confusion. Squirt # 1 tested Nexflex, whereas Squirt # 2 tested zero-G Pro. In both surveys, the packaging and other trademark indicia were removed so respondents were just shown the following images:

Additionally, both surveys used a black hose as the "control" product:

Based on the results of the surveys, Plaintiff's expert testified that Squirt Survey # 1 showed "net" confusion of 28%, whereas Squirt Survey # 2 showed 43%.

The Court held that the survey results were "virtually useless." Weems Indus. at * 123. Why was the Court so critical? For three reasons.

First, although Plaintiff claimed trade dress infringement in the color of its green hose, that does not mean that other indicia of source (i.e., the name "Flexzilla") should be removed from the survey stimulus. On this point, the Court noted (and the expert conceded) that "the way consumers view products in stores (under marketplace conditions) is different than how [the expert] presented the products with altered images in [the] consumer survey." Id. at * 118.

Second, the color of the Nexflex hose was actually altered. In the marketplace, Nexflex is a rather bright yellow, yet for some reason that color was muted in the actual stimulus shown to respondents:

On this point, the expert "agreed that if the colors shown to respondents in the survey were different from the colors of the actual hoses, that would be a fundamental flaw in [the] survey." Id. at * 119.

Finally, the Court was troubled by the black hose control because it had the absence of any color. Instead, the Court indicated it would have been more appropriate to use a "hose having a color just outside what Weems would consider to be infringing." Id. at * 119.

The Takeaways. Selecting survey stimuli can be fraught. It is important to ensure that the stimuli selection squares with how consumers will encounter those stimuli out in the wild. And, even seemingly modest (and apparently, inadvertent) modifications to color--especially when "color" is a key issue in the case--can prove problematic. Finally, the control stimulus should bear as many similarities to the test stimulus as reasonably possible. Removing all color from a control stimulus when the key issue in the case is about color, could mean your survey results will hit a bit of a kink with the Court.