While nearly two million marks are federally registered, few have sufficiently strong memory traces so as to be cued by pattern matching engendered by an exposure to a similar junior use.The consumer's internal search of memory for a strong brand's schema that exists at the core of an Eveready study is a tough hurdle for most marks. For weak marks, an Eveready format will consistently produce negligible estimates of likelihood of confusion. Therefore, the Squirt format, with an external review of the marks at issue that flows from their side-by-side or sequential exposure inherent in the administration of a Squirt survey, may be more appropriate.
The Confusion Factors Tested by Squirt
A Squirt survey and variants of the Squirt format test similarity of marks, similarity of products, and market proximity. The proximity factor is critical. In an Eveready survey, given the "accessibility" of a strong mark, an unaided comparison (involving an internal search of memory) is appropriate where the respondent is likely to encounter the junior mark (and pattern match) in the natural flow of commerce. In a Squirt format, however, where the senior mark is not "accessible" in memory, an aided comparison (involving the representativeness heuristic) is appropriate where the marks exist side-by-side in the market or if one is typically encountered sufficiently soon after the other that the recent brand or stimulus exposure (the "recency effect") places both in the consumer's "cognitive workspace."
Sources: Where brands are externally available for comparison, an Eveready (with its requirement of internal accessibility) should not be used to"disprove'' Many courts, however, do not appreciate the distinction. See,e.g., Nat'I Distillers Prods. Co., LLC v. Refreshment Brands. Inc., 198 F. Supp. 2d474,482-84 (S.D.N.Y. 2002); GMA Accessories, Inc. v. Crosci/1, Inc., No. 06 Civ. 6236 (GEL), 2008 U.S. Dist.LEXIS 16052,at*27(S.D.N.Y.Mar.3,2008).;EdgeWireless,LLCv.US.CellularCo,p.,No.03-1362-AA,2004U.S.DistLEXIS 15297, at *17 (D. Or. July 23,2004).
Rhonda Harper - Expert Witness
Rhonda Harper is routinely retained to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error.
Located in Dallas, TX, Rhonda Harper has been retained by 95+ law firms since 2005. With a focus on Trademark and Trade Dress Infringement, Misleading and Deceptive Advertising, Licensing, and Commercial Reasonableness cases, Rhonda Harper has conducted hundreds of research studies, including 50+ Likelihood of Confusion and Secondary Meaning surveys. She has been deposed ~50 times and served in ~20+ trials and arbitrations.