Likelihood of Confusion Survey Formats

Selecting the right type of survey format is critical to a successful trademark infringement case. The proper form of likelihood of confusion survey depends on the Courts have recognized three primary question formats as reliable:

• The Exxon format (different channels of trade)
• The Eveready format (different channels of trade)
• The Squirt format, sometimes modified and called the “line-up” format (similar channels of trade).

In the Exxon format (accepted by the 5th Cir), the survey participant is shown the junior mark and asked: “What is the first thing that comes to your mind when looking at this name?” If the senior mark comes to mind when displaying the junior mark, then confusion exists between the two.

In the Eveready format (adopted by the 7th Cir.), the participant is shown the junior mark and asked:

(1) “Who do you think makes this brand?”

(2) “What makes you think so?”

(3) “Name any other products made by the same ”

Responses that include the name of the senior manufacturer or its products connote evidence of confusion.

In the Squirt format (accepted by the 8th Cir), the participant is asked whether the junior and senior marks are put out by the same or different companies (i.e., “Do you think SQUIRT and QUIRST are put out by the same or different company?”).

• While possibly the most direct measure of confusion, especially for goods in similar channels of trade, the format has been criticized for leading the participant to consider an association between two marks that may not have been considered.
• As a result, more recent Squirt surveys use a two-step “line-up” format in which one of the products at issue and one control is shown in two separate line-ups under marketplace conditions, and respondents are then asked about association between marks at issue as well as a control.