Internet Surveys Come of Age

TASA ID: 961

This article originally appeared in the June 2013 issue of Intellectual Property Today.  It is reprinted with permission.  Further duplication without permission is prohibited.  All rights reserved. ®2013  

A few years ago, Internet surveys in Intellectual Property litigation were novelties - not anymore.  In fact, the Internet survey has come of age and become mainstream as the preferred methodology for many types of intellectual property litigation-related surveys.

The biggest reason for the rise of the Internet survey is the demise of the other more established and conventional methodologies.  At the same time, the Internet continues to add new technological features that enhance its ability to reach populations and probe relevant target markets.  

The Demise of Older Methodologies

Not terribly long ago, telephone surveys were considered "coin of the realm."  Call centers would work day-and-night telephoning people at work and at home.  But technology and invention have virtually killed the telephone survey.  The biggest culprit is "caller ID."  Since most surveys emanate from 800-number call centers, that is what shows up on the caller ID and gives the potential interview subject the ability to not answer the phone.  In fact, some telephone carriers will flash the name of the caller on a TV screen or orally announce who is making the call.  All these technological devices alert people to intrusive calls and encourage people not to answer the phone and take an intrusive survey.

The second technological culprit that victimizes the telephone survey is the cell phone.  Virtually everybody has a cell phone, and cell phone numbers are not listed in any phone directories.  Many thousands of telephone customers have given up their land lines and use only cell phones.

The mall intercept survey used to be another very popular survey methodology. Research companies would maintain research centers within large shopping malls, and employees of the research centers would patrol the malls looking to recruit survey participants, usually based on some initial screening criteria. Once the shopper was screened and agreed to participate in the survey - usually for some modest cash incentive - that participant was escorted by the screening person into the research center where the participant was seated at a table or computer workstation and given the survey.

The reason for the demise of the mall intercept methodology is two-fold.  Many shoppers avoid malls today and prefer to shop online using their computers.  The people who frequent malls are not necessarily a cross section of the population.  Elderly people routinely come to the malls early in the day for exercise walks before stores open. Some shoppers at malls also tend to be youthful.   Many mall visitors are parents or babysitters with small children.  In short, you are not getting a population cross section. 

Another reason why the mall intercept survey is losing its popularity is that more and more shopping malls are eliminating their research centers. They don't produce enough revenue and tend to be highly labor-intensive. Fewer and fewer major markets today have malls where research centers are located.

Why the Internet Has Become So Popular

While technology has crippled the older methodologies, it has strengthened the use of the Internet in survey research.  Virtually, everybody uses a computer and accesses the Internet on-line.  Many people go online every day.  Some people are on the Internet all the time. People are comfortable with the point-and-click methods of accessing and inputting data.  

There are a myriad of ways surveys can be presented on the Internet.  Templates abound. Questionnaires can easily be plugged into those templates like "Survey Monkey" and "Zoomerang."   Moreover, the rise of the Internet panels has made survey research on the Internet even easier.  Some of these survey panels have tens of thousands of constituents - people who have volunteered to take surveys for the relatively modest rewards the panel companies offer.  Especially in researching consumer packaged goods and services, the Internet can produce large numbers of respondents very quickly.  The incentives provided by the Internet panel companies are most affordable. 

The Internet also can work for the most challenging of surveys - the pre-recruit.  Here you are looking for people with specific backgrounds, needs and buyer behavior characteristics. You can design the Internet survey for these hard-to-reach people and initially contact them by e-mail or telephone and steer them to the survey by providing a link to the on-line questionnaire.  Another variation is to combine a telephone methodology with an Internet survey by having the respondent access stimuli online and then have the telephone interviewer ask specific questions and record results.

The thing that makes the Internet so compelling is the ability to show photos and images in your survey.  You can even probe sound stimuli online. Photos and images as stimuli are impossible in a telephone survey. 

Internet Also Provided Validation Potential

In most cases it is desirable to "validate" a survey.  This is usually accomplished by an independent research company who telephones a percentage of people who participated in the survey.  The validation process is a remnant of the mall intercept methodology.  Because some research facilities in shopping malls might have been unscrupulous about reporting who participated in a survey, the survey expert would hire an independent research agency to call people who told the mall research center they took a survey.  When a survey is validated, the researcher usually makes sure the people were qualified to take the survey and makes sure they, indeed, did participate where and when they said they did.  

Internet surveys often ask, at the end of the survey, the respondents' names and phone numbers.  If an incentive is involved, they also must provide their address.  Thus, the validation firm can simply call these people and verify that they were qualified and they did take the Internet as the report indicated they had. 

What the Courts Think of Internet Surveys

Three peer-reviewed articles all confirm that judges, courts and the market research industry view Internet surveys most positively.  Moreover, they confirm the Internet has become the methodology of choice in the market research industry.

In "Internet Surveys for Trademark Litigation:  Ready or Not, Here They Come," by Gabriel M. Gelb and Betsy D. Gelb (The Trademark Reporter, Official Journal of the International Trademark Association, September-October, 2007) the authors write:

"In 10 recent federal court cases, no online survey was faulted for its data collection method...."
"In recognition that online research has no greater 'self-selection' issues than does its telephone counterpart, and possibly fewer, use of Web-based surveys has zoomed upward as Internet usage has expanded...."

"...To our knowledge, Internet surveys have been introduced into evidence without anyone's raising an eyebrow...."

In Why Online Surveys Can Be a Smart Choice in Intellectual Property Litigation, published in 2008 by the MMR Strategy Group, authors Dr. Bruce Isaacson, president of the MMR Strategy Group, Jonathan D. Hibbard, PhD, Boston University School of Management, and Scott D. Swan, PhD, Boston University School of Management, write:

"Online surveys also have another significant - and growing -- advantage. The courts have indicated that (online) surveys examining likelihood of consumer confusion to be as 'realistic' as possible in replicating 'real world' consumer shopping experiences...."

"Conducting surveys over the Internet started around 1997 and now is widely seen as an accepted mode of interviewing.  In fact, online research has grown faster than all other research modes and now accounts for 38% of all commercial research projects. This growth has occurred because online research if often the fastest and least expensive way of gathering reliable data...."

In "A Comparative Empirical Analysis of Online Versus Mall and Phone Methodologies for Trademark Surveys" by Hal Poret (The Trademark Reporter, The Law Journal of the International Trademark Association, May-June 2010), the author writes:

"Despite these many theoretical and practical concerns, the number of actual judicial criticisms of online surveys is quite small...."

"Courts considering online surveys conducted in 2009 and 2010 seem not to question the use of online methodologies at all, finding them admissible without raising any concerns regarding the use of the Internet...."

"Most importantly, perhaps, the Internet is now the single most common means of collecting consumer opinion and behavior data in the market research industry...."

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA.

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