Trademark surveys are frequently used to measure the likelihood of confusion, particularly in trademark infringement matters. Surveys represent a reliable method of providing evidence, particularly when paired with well-conducted and well-presented expert analysis and testimony.

MMR Strategy primarily uses two types of research methods in litigation surveys. These methods are often called “Eveready” and “Lineup” format.

The basic research design involved in each format is as follows:

• Eveready format: The Eveready format shows respondents only a single trademark or product. Association with one party, in response to seeing products from the other party, indicates the likelihood of confusion. This format is widely-accepted, in part because it simultaneously addresses a variety of factors relating to confusion, such as similarity of marks and brand strength. Eveready designs are used with well-known or famous brands.
• Lineup format: The Lineup format shows respondents the trademarks or products of both litigants. Often, one product or trademark is shown by itself, while the other is shown in a lineup that also includes other products or trademarks that are similar in attributes such as size, price point, appearance, and features. This format can be used even with lesser-known brands, and replicates marketplace conditions by showing a lineup (or succession) of products that appear in proximity in the marketplace, or may be encountered in rapid proximity.

Each of these designs can be implemented in a wide variety of ways. For example, an expert seeking to conduct a likelihood of confusion survey must make design decisions such as:

• whether to show the junior or senior user first,
• which control to use,
• whether to show the lineup products together or successively, and
• which universe (i.e., target population of consumers or businesses) to interview.

The researcher must also decide which types of confusion to measure. For example, a likelihood of confusion survey might measure:

• confusion as to source,
• confusion as to business affiliation or connection, or
• confusion as to sponsorship or approval.

The measurements from the likelihood of confusion survey can be compared against standard sources or past precedents to evaluate whether or not the likelihood of confusion is present in sufficient quantity as to be considered substantial or relevant.

Contact us to learn more about the ways in which confusion can be measured and the nuances of a likelihood of confusion survey.