It is apparently common for a company accused of infringing another company’s trademark to survey shoppers in a mall, known as a “mall intercept.” A mall intercept commonly costs tens of thousands of dollars according to IP Law & Bus., Vol. 6, Feb. 2008 at 10. The article, however suggests a cost-saving strategy for law departments.
Have you or outside counsel find out about marketplace confusion between two brands by means of a preliminary survey on the Internet. Online market research sites, such as Vizu.com, can help post surveys and collect the responses for a fraction of the cost of a mall intercept. For other exotic ways to blow through your budget (See my post of Dec. 12, 2007: mock juries; Feb. 2, 2008: expert witnesses and references cited; and Feb. 20, 2006: extra expenditures on bone-crushing litigation.).