Likelihood of Confusion Survey Expert

Forward confusion occurs when consumers believe that the goods or services of a junior user come from, or are sponsored by, the senior mark holder. Reverse confusion occurs when the senior user's goods or services are mistaken for the junior user's goods or services. In other words, the consuming public is made to believe that the senior user is actually the infringer. This usually occurs because the junior user is larger and has saturated the market with advertising and publicity.

Initial interest confusion occurs when temporary confusion creates consumer interest in a good or service, but any confusion is dispelled before an actual purchase is made. Initial interest confusion capitalizes on the goodwill associated with another party's mark. As such, initial interest confusion can support a claim for trademark infringement. The most common type of confusion is point-of-purchase confusion. This confusion occurs at the time of purchase when a customer makes a purchase from one company believing it to be the good or service of another. Post-purchase confusionoccurs when someone other than the purchaser sees the infringing good or service and is confused.

The most classic type of confusion is source confusion in which the infringing mark confuses the consumer into believing that product or service comes from the wrong source. Source confusion is manifested if consumers make an unconscious judgment that the infringing product is associated with the source of the senior user's product. Sponsorship confusion is when the consumer is confused about whether one source has sponsored or approved the goods or services of another or whether there is some other affiliation, connection, or association between the two sources. 

One way to determine whether there is a likelihood of confusion as to the source of the mark, and if so to what degree, is by conducting a survey among the relevant consumers. There are two types of likelihood of confusion surveys: Eveready and Squirt-style. In an Eveready survey format, the senior user's mark is not shown to survey respondents as part of the survey. Instead, respondents are shown the (allegedly) infringing mark and asked a series of questions the source of the mark. By contrast, the Squirt-style format shows both parties' marks and asks a series of questions regarding the mark's source.

A second method to determine whether there is a likelihood of confusion as to the source of the mark is to complete a multi-factor analysis. Each of the eleven federal circuits have formulated a multi-factor test.