Measuring Consumer Confusion in Litigation

Measuring Consumer Confusion in
Litigation: What’s the Problem
with Surveys?
Presented by
Associate Professor Kimberlee Weatherall
Sydney Law School
1 April 2016
Fordham IP Conference, New York City.
The University of Sydney
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The Project: Testing Trade Mark Law’s Image of the Consumer
Australian Research Council Linkage Project No. LP120100249
Partners
IP Australia
Federal Court of Australia
Carlton & United Breweries and Treasury Wine Estates
Researchers (Law)
Associate Professor Kimberlee Weatherall (University of Sydney)
Professor Robert Burrell (University of Western Australia/University of Sheffield)
Professor Megan Richardson (University of Melbourne)
Researchers (Cognitive Psychology)
Emeritus Professor Mike Humphreys (University of Queensland)
Associate Professor Jennifer Burt (University of Queensland)
Dr Kimberley MacFarlane (University of Queensland)
Researchers (Marketing)
Dr Sarah Kelly (University of Queensland)
Professor Jill Klein (Melbourne Business School)
The University of Sydney
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Motivators for the project
1.
Especially in the UK and Australia, but also to a lesser extent in other
European jurisdictions and in other jurisdictions, courts don’t make much use
of empirical evidence like surveys
– See Interflora v Marks & Spencer (UK and CJEU)
– Doubts about use of survey evidence in providing information for
assessment of response of ‘hypothetical reasonable/perspicacious
consumer’.
2.
Parties can spend lots of money putting together experimental or survey
evidence only to have the court reject or largely disregard the evidence
3.
Experimental psychology should have both insights and tools (including
cheaper tools) that could be better used in trade mark law.
– Not just in courts – possibly in trade mark offices too
The University of Sydney
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What we’ve been doing
1.
To identify:
a) assumptions made by courts and other tribunals about
consumer responses to similar brands, and
b) reasons why tribunals (in Aust/UK esp) tend to reject
empirical evidence of likely consumer reaction.
2.
Testing these assumptions using a range of experimental
techniques commonly used in experimental psychology.
1.
To develop practical guidelines and techniques for
employing evidence of consumer confusion, that can be
used by legal decision-makers and parties involved in legal
disputes.
The University of Sydney
How do
lawyers
assess
confusion?
Can we test
these
assumptions
and consumer
responses
using
methods from
cognitive
psychology?
Can we do
better? Can
scientific
methods and
tests be
relevant to
legal
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processes?
Some things that we’ve tested
1.
Things that make words more/less similar (examples)
a) beginnings of words v ends of words
b) shared vowel sounds
c) morpheme overlap (overlapping syllables)
d) Differences in word length
2.
Can people ignore generic material (‘crunchy’ for cereal) when identifying
desired products?
1.
Do Australians really not understand “ORO” and “CINQUE STELLE” on
coffee packets as indicating quality (gold or 5 star)? (Australia in
Cantarella Bros Pty Ltd v Modena Trading Pty Ltd [2014] HCA 48).
2.
Also:
a) Do metrics of similarity used in psychology and related fields give
same results as when humans judge similarity (of possible use in
examination)
b) Are individuals consistent in their similarity ratings (do we think it is
right to trust individual decision-makers over even small survey results)?
The University of Sydney
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Some qualifiers
– Trade mark law has to accommodate more than just confusion.
– Even if we can show, for example, that people don’t ignore generic
material when trying to remember that coffee product that people
recommended, we still might not want to change the rules
– Lawyers and psychologists don’t talk the same language or conceptual
model of decision-making
– This is an underlying issue whenever trying to offer survey evidence
The University of Sydney
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