Measuring Consumer Brand Confusion to Comply with Legal Guidelines

Abstract

In actions for trademark infringement and passing off, judges determine subjectively the existence, or likelihood, of marketplace ‘confusion’. In arriving at a ruling, a court may rely upon evidence from witnesses, secondary documents (e.g. letters of complaint) and market research, but this is not obligatory. The legal treatment of evidence is coloured by an awareness that many forensic criticisms can be made of the overall standard and effectiveness of structured questionnaire surveys. For example, surveys (1) are frequently badly worded, or poorly executed, (2) prove of no relevance to the action, or produce evidence that helps the other side, and (3) are expensive. The judiciary has expressed a preference for certain types of surveys and set out ‘good’ market research practice guidelines with which researchers must comply. Here, we examine the problems underlying these criticisms and discuss their market research implications.