Overview: Rhode-NYC is a New York-based fashion brand that launched a trademark infringement lawsuit against the new Rhode cosmetics brand owned by Hailey Bieber, wife of Justin Bieber. The complaint alleges that Bieber launched the brand in bad faith. How might a consumer survey be used in a trademark case like this?
Cosmetic Case Facts
Rhode-NYC LLC is a fashion brand out of New York that holds a number of trademarks on apparel, handbags, and accessories. Hailey Bieber, wife of pop star Justin Bieber, sought to secure trademark rights in 2018 from Rhode-NYC for her cosmetics brand, Rhode, a nod to her middle name. Rhode-NYC declined, but when Ms. Bieber launched the cosmetics brand in 2022, Rhode-NYC filed a trademark infringement suit, alleging that consumers would be confused by the brand affiliation and that it would lose its reputation and goodwill.
Consumer Confusion in Cosmetics
Ms. Bieber and Rhode-NYC were in settlement talks as of mid-September and had halted discovery. However, if they were to proceed to trial, they may consider a consumer survey to measure the likelihood of confusion between their brands. A key ingredient in proving a trademark infringement claim is consumer confusion; parties must show that reasonable consumers are likely (or unlikely) to be confused. In this case, assuming neither brand is well-known by relevant consumers, a Squirt survey might be a reliable approach to measure likelihood of confusion. To justify the use of a Squirt survey, a survey expert would need to consider whether there is typically proximity between the two products in the marketplace. If Ms. Bieber’s brand Rhode were sold only on social media platforms, but Rhode-NYC were sold only in retail stores, there may not be sufficient proximity and a Squirt format survey might be inappropriate.
An alternative might be to conduct an Eveready format likelihood of confusion survey. For an Eveready survey to be reliable, the senior user (in this case, Rhode-NYC) might need to be well-known among relevant consumers. If a litigant isn’t sure whether the senior user’s mark has sufficient awareness, it may consider conducting an awareness survey first. If that survey shows significant brand awareness, then an Eveready survey might be justified.
Designing a survey to measure consumer confusion requires careful thought about the specific circumstances of the brand or product. For reliable survey evidence in trademark litigation, contact the consumer survey experts at MMR Strategy Group.