The Consumer as the Empirical Measure of Trade Mark Law

31 Pages Posted: 7 Jan 2017

Multiple version iconThere are 2 versions of this paper

Date Written: January 2017


Although consumer responses to signs and symbols lie at the heart of trade mark law, courts blow hot and cold on the relevance of empirical evidence – such as surveys and experiments – to establish how consumers respond to alleged infringing marks. This ambivalence is related to deeper rifts between trade mark doctrine and the science around consumer decision‐making. This article engages with an approach in ‘Law and Science’ literature: looking at how cognitive psychology and related disciplines conceptualise consumer decision‐making, and how counterintuitive lawyers’ approaches appear from this perspective. It demonstrates how, especially when proving confusion, decision‐makers in trade mark demand the impossible of empiricists and are simultaneously blind to the weaknesses of other sources of proof. A principled divergence, without seeking to collapse the gaps between legal and scientific approaches, but taking certain small steps, could reduce current problems of proof and contribute to better‐informed, more empirically grounded decisions.

Keywords: trade mark law, survey evidence, cognitive psychology, consumer confusion, the average consumer

Suggested Citation

Weatherall, Kimberlee Gai, The Consumer as the Empirical Measure of Trade Mark Law (January 2017). The Modern Law Review, Vol. 80, Issue 1, pp. 57-87, 2017, Available at SSRN: or

Kimberlee Gai Weatherall (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006

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