Using survey evidence to measure consumer confusion.
In intellectual property disputes, including trade mark and get-up infringement litigation, a central question is typically whether consumers are likely to be confused about the source or affiliation of a product or service. Likelihood of confusion surveys can, in appropriate cases, be an essential tool in answering this question, providing courts and tribunals with empirical evidence of consumer perception.
To evaluate whether a trade mark or get-up is infringed, courts consider the likelihood that consumers will be confused as to the source or affiliation of the product or service. To provide this evidence, likelihood of confusion surveys measure whether relevant consumers may be confused. Surveys measuring forward confusion test whether consumers believe a later entrant’s product or service originates from, or is affiliated with, a senior user. In contrast, reverse confusion surveys measure whether consumers may mistakenly think the earlier rights holder’s mark comes from a better-known junior brand.
With extensive experience supporting high-stakes intellectual property litigation, IMS delivers expertly designed likelihood of confusion surveys. Our litigation surveys and consumer science team designs and conducts likelihood of confusion surveys that reflect real-world marketplace conditions and adhere to authoritative standards.
