Measuring Consumer Uncertainty: NYU researchers suggest more nuanced tools to gauge the marketplace confusion caused by similar trademarks


在商标侵权诉讼中, parties often use the results of consumer surveys to make a case for trademark dilution—the unauthorized use of a trademark that’s likely to weaken its distinctive quality or harm a famous mark. 但是如何解释这些调查的结果呢? A new article by four NYU faculty members explores an often-overlooked issue in trademark survey evidence: leading survey formats test for whether consumers believe that two products bearing similar trademarks have the same source, but they neglect to investigate how strongly such beliefs are held. 

几年来,巴顿·毕比,约翰·M. Desmarais Professor of Intellectual Property 法律; 克里斯托弗·乔恩·斯普里格曼, Murray and Kathleen Bring Professor of 法律; NYU 法律 Adjunct Associate Professor Roy Germano; and NYU Stern Professor Joel Steckel have been exploring the effectiveness of the surveys that courts use to measure consumer perception. “We looked at surveys that were used in trademark litigation, 看到了一些问题, 想看看熊猫国际官网能不能做得更好,斯普里格曼解释道. 他们的第一篇论文。”在法庭和实验室进行商标稀释测试,发表在 芝加哥大学法律评论 in 2019. 该团队收集了超过2个品牌关联数据,000名调查参与者, who viewed a series of advertisements for fictional products such as “Mercedes toothpaste.” They found that despite attempts to dilute the identity of luxury car brands, 商标对消费者的独特性没有受到影响.

他们的新论文。”The Role of Consumer Uncertainty in Trademark 法律: An Experimental and Theoretical Investigation,” focused on modifying several existing trademark surveys to test for strength of belief. 例如, Eveready, 喷射, 埃克森美孚 survey formats—named for trademark cases—attempt to estimate the proportion of consumers who are confused about the true source of the defendant’s products because of similarities between trademarks. The NYU researchers probed further with a follow-up question: “on a seven-point scale from ‘definitely manufactured by the same company’ to ‘definitely manufactured by different companies,你对自己的答案有多自信?” Their results showed that even when consumers confuse similar trademarks, 他们错误的信念往往站不住脚. 

The researchers write that their findings raise some fundamental questions about trademark law: “We explain how trademark survey formats that reveal the true extent of consumer uncertainty in the marketplace may finally force trademark law and policy to confront normative questions it has long left unanswered going to exactly what kind of harm trademark law is meant to forestall.斯普里格曼和毕比回答了有关他们工作的问题.

Why does the strength of a particular consumer’s belief matter?


Sprigman: If trademark law is interested in trying to make a prediction about how consumers are going to act in markets, we want to try to tie people’s mental states to the likelihood of some behavior. Assessing the strength of those mental states is one way to do it. 

例如, if a consumer has a very weak impression that two marks come from the same producer, it might be that some little bit of context in the market dispels that impression, 也就是说,没有人会采取行动, 在此基础上做出购买决定. 另一方面, 如果印象很深刻的话, it might be that whatever context is present in that market might 驱散它,人们可能会采取行动. 

毕比: A不her important idea to 不e is that survey evidence and trademark litigation is susceptible to expert manipulation. Experts are hired by one party or the other and will often feel pressure to come up with results which benefit their client’s case. And we think that failing to emphasize belief strength—but rather treating a consumer’s belief as simply binary—makes the survey instruments much more susceptible to manipulation.

Sprigman: We have hope that our paper will induce judges to “look under the hood” a bit and demand that parties produce surveys which indicate belief strength and varying degrees of certainty with which consumers can hold a belief. 
Does requiring a certain amount of “strength” create an unworkable standard for courts? 法院如何知道信仰是否足够坚定?


毕比: 法院一直以灵活的标准工作. And it is 不hing new to them to deal with a flexible standard as long as they understand the underlying rationale, which is that it is based on whether belief drives behavior in the marketplace.
Sprigman: Our view is that doing surveys to assess belief strength is 不 much more complicated than what researchers are doing now. 它提供的信息可能非常有价值. It requires the parties and the courts to do a little bit of thinking. But it helps avoid wrong signals that surveys can send, either in favor or against liability. 

How heavily should the inquiry into belief strength weigh into the court’s analysis?
这取决于你找到了什么,对吧? If you look into many people’s answers and they’re based on very, 非常弱的信念, 那你根本就不应该太看重那个证据. 

如果你注意到大量的坚定信念, that yields better evidence and you can lean a little more heavily on that. Those strongly held beliefs can help indicate what might happen in the world.

发布于2021年12月1日. 以下采访经过编辑和浓缩.