Likelihood of Confusion

How to determine which format to use

If  your case involves trademark or trade dress infringement a consumer survey to test the source of the mark may be required to show infringement. But which type of survey is the right choice? Harper Litigation Consulting and Research experts have over thirty years of survey experience.

There are two basic likelihood of confusion survey formats: Squirt and Eveready. Deciding which format to use requires knowledge about branding, awareness, distribution, and consumer behavior. With 30 years experience, Ms. Harper knows that while nearly two million marks are federally registered, few have reached the level of awareness sufficient to be cued in a consumer's mind by an exposure to a similar junior use. This internal search of memory for a strong brand's schema that exists at the core of an Eveready study is a tough hurdle for most marks. Therefore, the Squirt-based format, with an external review of the marks at issue that flows from their side-by-side or sequential exposure may be more appropriate.

In an Eveready survey, given the "accessibility" of a strong mark, an unaided comparison (involving an internal search of memory) is appropriate where the respondent is likely to encounter the junior mark (and pattern match) in the natural flow of commerce. In a Squirt format, however, where the senior mark is not "accessible" in memory, an aided comparison (involving the representativeness heuristic) is appropriate where the marks exist "side-by-side" in the market or if one is typically encountered sufficiently soon after the other that the recent brand or stimulus exposure (the "recency effect") places both in the consumer's "cognitive workspace."

Ms. Harper is routinely retained to provide trademark and trade dress surveys. Specifically, she formulates expert surveys, conducts rebuttal critiques, and/or constructs 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.