Who Cares About the 85 Percent? Reconsidering Survey Evidence of Online Confusion in Trademark Cases

96 J Pat Trademark Off Socy 265-297

Vanderbilt Law and Economics Research Paper No. 14-34

35 Pages Posted: 14 Nov 2014 Last revised: 22 Nov 2014

See all articles by Daniel J. Gervais

Daniel J. Gervais

Vanderbilt University - Law School

Julie Latsko

Vanderbilt University

Date Written: October 1, 2014

Abstract

There is an assumption in US trademark law that the protection of consumer interests -- a traditional pillar of trademark law -- is best achieved by enjoining a defendant's use of a mark that creates a likelihood of confusion (with the plaintiff's mark) for 15% or more (sometimes less) of relevant consumers. Courts often use survey evidence to determine the existence of a likelihood of confusion. This article argues that the interests of all consumers are relevant in that determination. This means that assessing the costs, if any, imposed on nonconfused consumers should also be part of the equation. This can be accomplished in part by making better use of verbatim answers and by taking a deeper look into the information conveyed by the survey. Likelihood of confusion analyses should be both quantitative and qualitative.

Keywords: Trademarks, online, likelihood of confusion, surveys

JEL Classification: K30, C42

Suggested Citation

Gervais, Daniel J. and Latsko, Julie, Who Cares About the 85 Percent? Reconsidering Survey Evidence of Online Confusion in Trademark Cases (October 1, 2014). 96 J Pat Trademark Off Socy 265-297; Vanderbilt Law and Economics Research Paper No. 14-34. Available at SSRN: https://ssrn.com/abstract=2523425

Daniel J. Gervais (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615 322 2615 (Phone)

Julie Latsko

Vanderbilt University ( email )

2301 Vanderbilt Place
Nashville, TN 37240
United States

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