Parties in trademark infringement litigation frequently introduce survey evidence to demonstrate consumer confusion. Especially, Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Ltd. Partnership (1994) highlights the significant roles of such survey evidence in sport trademark litigation. While Colts is arguably one of the most influential federal cases in sport trademark jurisprudence, the decision has been criticized for various grounds. This article focuses on the questionable validity of the survey evidence used in Colts. After discussing the crucial values of survey information in trademark infringement cases, it points out the problematic psychometrical validity of the key evidence used by the plaintiffs in Colts. Lastly, the paper introduces an SEM protocol widely used in social science research (i.e., Congenerity Test; Ohanian, 1990), as a gatekeeping technique that would likely screen out unreliable survey information. It demonstrates how the technique could have been used by the parties in Colts case.
