Internet Trademark Case Summaries
Learning Network, Inc. v. Discovery Communications, Inc.
153 F. Supp. 2d 785 (D. Md. 2001)
Plaintiff commissioned a consumer survey to determine whether there was a likelihood of confusion between plaintiff’s LEARNING NETWORK website and defendant’s THE LEARNING CHANNEL cable-television network. The mall-intercept survey showed participants print versions of plaintiff’s website. The print-outs omitted both the title bar at the top of the web page and the URL in the web browser. The first page of each web page portfolio did contain the URL of the site being shown. They were then asked open-ended questions, including: (1) whether the website was known by any name other then the one on the website, (2) whether the website’s owner or operator engaged in any other businesses, and (3) whether the website obtained or needed to obtain permission from anyone for any reason. Although the survey purportedly established that no likelihood of confusion existed, the court granted defendant’s motion to exclude the survey and related testimony. The court held that, unlike real-world consumers, the survey subjects were not shown to have known the identity of plaintiff’s website. Accordingly, the survey failed to establish that the respondents were answering questions with critical knowledge equivalent to that possessed by the relevant universe of consumers of plaintiff’s website. The survey did not require the subjects to use “real world affirmative action,” such as web searching or typing in a URL, that would reinforce the identity of the website. Survey participants were also prevented from viewing identifying cues, such as the website’s title bar and the URL address in the browser. The court found the survey to be “severely defective” for failing to ask “any question that would test the critical question of what website it is that the subject thought they had seen.” This defect rendered the survey’s other open-ended questions regarding permission and the website’s owner’s other activities too vague to yield any meaningful information.