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Harper Litigation Consumer Research

Confused about Consumer Confusion?

Assessing Consumer Confusion Can Be Confusing

First, are consumers confused as to which is the senior user of the mark?

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.

Are consumers confused before, during, or after a purchase?

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. However, initial interest confusion impermissibly capitalizes on the goodwill associated with a mark. As such, initial interest confusion can support a claim for trademark infringement. The most common type of confusion under trademark law is point-of-sale 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-sale confusion (or post-purchase confusion) can form the basis for a trademark infringement claim. Post-sale confusion occurs when someone other than the purchaser sees the infringing good or service and is confused. The law in the Ninth Circuit is clear that post-purchase confusion on the part of someone other than the purchaser who, for example, simply sees the item after it has been purchased, can establish the required likelihood of confusion under the Lanham Act.  An action for trademark infringement can in fact be based upon the confusion of non-purchasers, such as those who simply observe the purchaser wearing the accused article of clothing. Post-sale confusion, the court noted, may be no less injurious to the trademark owner’s reputation than confusion on the part of the purchaser at the time of sale.

Are consumers confused as to the relationship between the senior user and the junior user?

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 even though the formal name of the manufacturer may not known to them. 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 such relationship is when the maker of one service or product might naturally be assumed to be the maker of another service or product. When products or services are noncompeting, the confusion at issue is generally this type of confusion. The actual intent of the senior user to expand is not particularly probative of whether the junior user’s market is one into which the senior user would naturally expand. If consumers believe, even though falsely, that the natural tendency of producers of the type of goods marketed by the prior user is to expand into the market for the type of goods marketed by the subsequent user, confusion may be likely. Association confusion is a basis for trademark infringement and occurs when a user’s mark confuses or deceives the consumer causing the consumer to identify the properties and reputation of a product with another, although the consumer may not be able to identify the particular manufacturer of each.

The Second Circuit's Judge Gurfein explained, "The reason is that advertising and trademarks rely on impressions. The consumer does not memorize the mark. He has a feeling about it from past exposure. That feeling may be vague, subliminal it is said, but it comes to consciousness when the article is seen with the trademark affixed." Judge Gurfein went on to say that the “ultimate test is . . . whether the public is likely to be confused by the similarity of the marks as to the source of the goods.”