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Eveready

Likelihood of Confusion – Does the Eveready Format Make Sense for Your Case?

Likelihood of Confusion

Is the Eveready format the right choice for your likelihood of confusion case?

Does your case involve trademark or trade dress infringement? If so, a likelihood of confusion consumer survey may be required to help prove, or disprove, infringement. Generally, two types of survey formats are used: Squirt and Eveready.

With more than 30+ years of Fortune 500 advertising, research, and marketing experience, Ms. Harper has conducted thousands of surveys. Determining whether to use a Squirt or Eveready based format for the survey can be tricky. But, if possible, the gold standard Eveready format is the one to choose. How, though, can you be sure it is the right choice?

Ms. Harper can help you through the analysis to determine whether or not the Eveready format is appropriate:

  • Unaided brand awareness scores
  • Market distribution
  • Advertising support
  • Household penetration

The Eveready format primarily addresses three confusion factors: similarity of marks, similarity of products, and brand strength (accessibility in memory).

Unaided brand awareness, or strength, is the key:

  • if a schema is easily accessible, it can be cued by a similar mark even where there is little or no similarity in products
  • if a brand is dominant (COKE), its schema may be cued by another brand in the category (PEPSI), even where there is no similarity of marks

If, however, the senior mark is not accessible in the consumer's mind, it obviously cannot be cued irrespective of mark and product similarity. Specifically, when an open­-end question is used in connection with a a mark that is not particularly well-known, it needs to be understood that the "top-of-mind" awareness of the brand required by the Eveready format may significantly underestimate the likelihood of confusion.

In cases involving strong marks, the Eveready format is the gold standard. An Eveready survey used among prospective consumers of the alleged infringer's products or services with the stimulus left in view, approximates that of an "involved"consumer and produces, coupled with a control cell to filter noise, a reliable estimate of likelihood of confusion.

Reviews of "why" question answers typically reveal that senior mark responses to a "who makes or puts out" question have occurred because the consumer's "stored knowledge" of the senior mark is "accessible" and there is a fit between the stored knowledge and the junior mark.

Because a strong mark is likely to be attended to in the marketplace, it is reasonable to assume that a stimulus that "fits" the strong mark's schema will be attended to, and that an Eveready survey thus measures probable assessments in the marketplace, not artificially created or forced opportunities.

The only hypothetical is the degree to which a respondent would be likely to encounter the junior use in the marketplace, and any concern as to the real world basis for that likelihood is alleviated by limiting the universe to consumers and prospective consumers of goods in the category of the alleged products and services.


Rhonda Harper MBA, Survey Expert, Expert Witness

Rhonda HarperRetained by 100+ law firms since 2005, Ms. Harper is courtroom proven. She has been engaged to provide 65+ surveys, 80+ reports, 30+ rebuttals, 45+ depositions, and serve in 20+ trials. She has provided services to both Plaintiffs (60%) and Defendants (40%) across trademark and trade dress, packaging, merchandising, defamation, licensing, breach of contract, advertising, and commercial reasonableness. She has provided services in virtually every Circuit as well as JAMS and TTAB.

Ms. Harper's 30+ year career includes serving as a Fortune 100 Chief Marketing Officer. Having authored two books, she is a former Adjunct MBA Marketing Professor.

Ms. Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error.

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