Consumer Surveys in Trademark Cases: What Eveready and Squirt Actually Measure
By Casey Scott McKay ·
Likelihood of confusion is an empirical question about what strangers believe, and a consumer survey is the only tool that measures it directly. This article explains what the two dominant confusion-survey formats actually test: the Eveready format, an unaided memory test that fits a commercially strong senior mark, and the Squirt format, an aided comparison test that only replicates reality when the parties' goods are genuinely proximate. It covers the Exxon "reminder" format and its limits, secondary meaning surveys, Teflon and Thermos genericness surveys under the primary significance test, and dilution association surveys. It then works through the four places surveys die in litigation — universe, stimulus, questions, and control — and explains the arithmetic of net confusion, the noise and guessing problem, and why courts rarely accept a raw percentage. It closes with the evidentiary framework: Federal Rules of Evidence 702 and 703, the December 2023 amendment to Rule 702, Daubert and Kumho Tire, the survey hearsay exception, the Reference Manual on Scientific Evidence, and the circuit-by-circuit divide over whether methodological flaws go to weight or to admissibility.
IP and Technology > Trademarks | Article | Published 2 June 2024 - Updated 10 October 2024 | Casey Scott McKay - marksy.us
Summary. Likelihood of confusion is an empirical question about what strangers believe, and a consumer survey is the only tool that measures it directly. This article explains what the two dominant confusion-survey formats actually test — the Eveready format, an unaided memory test built for a commercially strong senior mark, and the Squirt format, an aided comparison test that only replicates reality when the parties' goods are genuinely proximate — along with the Exxon "reminder" format, secondary meaning surveys, Teflon and Thermos genericness surveys, and dilution association surveys. It works through the four places surveys die in litigation (universe, stimulus, questions, control), explains the arithmetic of net confusion and why courts distrust raw percentages, and lays out the evidentiary framework: Rules 702 and 703, the December 2023 amendment, Daubert, the survey hearsay exception, and the circuit divide over weight versus admissibility.
Keywords: trademark survey · eveready survey · squirt survey · exxon survey format · teflon survey · likelihood of confusion survey · secondary meaning survey · genericness survey · survey control · survey universe · net confusion · daubert · federal rule of evidence 702 · federal rule of evidence 703 · reference manual on scientific evidence · survey hearsay exception · weight versus admissibility · consumer perception evidence
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