Nearly two million marks are federally registered. Comparatively few have (or can hope to develop) sufficiently strong memory traces so as to be cued by pattern matching engendered by a monadic exposure to a similar junior use.
The internal search of memory for a strong brand’s schema that exists at the core of an Eveready study is thus hostile to the general run of marks; for weak marks, an Eveready format will consistently produce negligible estimates of likelihood of confusion. Ergo 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.
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 unaidedcomparison (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.”
- 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).
About Rhonda Harper LLC – Expert Witness
Located in Dallas, TX, Rhonda Harper has been retained by 95 law firms since 2013. With a focus on Trademark Infringement and Deceptive Advertising cases, Harper has conducted 50+ Likelihood of Confusion and Secondary Meaning surveys. She has been deposed ~50 times and served in ~20+ trials and arbitrations.