Likelihood of Confusion Surveys

A central question in many trademark disputes is whether consumers are likely to be confused about the source, sponsorship, or affiliation of products or services due to alleged infringement of a senior user's mark. Consumer surveys address that question directly, providing courts with objective, scientific data on how the relevant public actually perceives the marks at issue. Dr. David Neal has designed and conducted likelihood of confusion surveys in hundreds of trademark matters, appearing as a testifying expert in federal and state courts, before the Trademark Trial and Appeal Board (TTAB), and before the National Advertising Division (NAD) of the Better Business Bureau.

What Likelihood of Confusion Surveys Measure

A likelihood of confusion survey is typically designed to identify and quantify the extent to which consumers who encounter an alleged trademark infringement by a junior user are likely to mistake the associated product or service for one originating from, or associated with, or receiving permission from, the senior mark holder. This scenario is called "forward confusion." In some cases, a Plaintiff alleges "reverse confusion" which focuses, instead, on whether consumers who encounter the senior user are likely to mistake the associated product or service for one originating from, or associated with, or receiving permission from, the junior user.

Survey Formats

Several well-established survey formats have been used and relied upon by courts in likelihood of confusion cases. The selection of a format in any given matter involves consideration of the specific facts, including the nature of the marks, the allegations at issue, and the way consumers encounter the parties' products or services in the marketplace. Dr. Neal has employed all three of the following formats on numerous occasions.

The Eveready Format

The Eveready format presents respondents with one party's product or service (either the Plaintiff or Defendant depending on the nature of the alleged confusion) and then asks a series of open-ended questions about its perceived source, affiliation, and whether it received permission from another source. The format takes its name from the 1976 case, Union Carbide Corp v. Ever-Ready, and is widely recognized in the legal and survey research literature as a reliable methodology, when executed appropriately, for measuring consumer confusion.

Eveready surveys employ a randomized test cell and control cell design. Respondents in the test cell are shown the accused mark; respondents in the control cell are shown an otherwise similar stimulus with the alleged infringement removed. By subtracting the confusion rate observed in the control cell (where the alleged infringement is removed) from the confusion rate in the test cell (where the alleged infringement is present), the survey isolates any confusion that is attributable specifically to the alleged trademark infringement — as distinct from any baseline confusion that would exist in the marketplace in any event, such as guessing, brand awareness, general category beliefs, or similarities between the parties that are unrelated to the mark at issue.

The Squirt Format

The Squirt format takes a different approach by presenting respondents with stimuli from both parties in sequence, in a simulated marketplace context. This format replicates marketplace scenarios in which relevant consumers may encounter both parties' marks in proximity – that is, either simultaneously or sequentially in time/space. To replicate the real world and remove potential bias, respondents also see other products/services, called "foils," that are not parties to the litigation but are present in the same marketplace. Rather than asking open-ended questions like an Eveready, the Squirt format uses closed-ended questions to measure whether consumers are confused as to the source, affiliation or permission of the senior and junior user's goods/services. A test cell and control cell design is applied in the same manner as in Eveready surveys, allowing for an equivalent net confusion calculation to isolate any confusion caused by the alleged trademark infringement.

The Aided Eveready Format

The Aided Eveready, sometimes called a "modified Eveready", reflects a hybrid between the Eveready and Squirt formats. Under this approach, respondents are exposed to both parties' products and a series of foils, similar to the Squirt format. They then answer the same battery of open-ended questions used in an Eveready survey.

Common Testable Scenarios

Using these general approaches, it is possible to test a wide range of scenarios where trademark confusion is alleged to be occurring. Those scenarios include:

• 01 Forward and reverse confusion
• 02 Confusion stemming from word marks, logos and trade dress
• 03 Initial interest confusion
• 04 Purchase confusion
• 05 Post sale confusion

All likelihood of confusion surveys conducted at Catalyst are administered under a double-blind protocol, meaning that respondents are not informed of the purpose or sponsor of the survey, and the data collection methods are blind to any survey hypotheses. The sample selection, questionnaire design, data analysis, and reporting follow scientific best practices and are designed to meet the standards of the Federal Judicial Center's Manual for Complex Litigation and the Reference Manual on Scientific Evidence.