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Frequently Asked Questions about Proving Irreparable Harm with Consumer Surveys

AMS Survey Expert, Brian Sowers, Senior Manager, Marcello Santana, Esq., and Senior Analyst, Laura Paige, Ph.D., answer a few questions from their recent webinar, Proving Irreparable Harm with Consumer Surveys.

Q: When designing the survey, do respondents only see images of the senior product and allegedly-infringing product or do they receive more information about the two products?

A: When using consumer surveys to prove irreparable harm, it is important to provide the proper context to respondents about both the senior product and allegedly-infringing product to best replicate marketplace conditions. If point-of-sale confusion is alleged, in the real world, you would consider attributes like price or manufacturing materials listed with the product and not just simply the “look” of the product alone. If after-sale confusion is alleged, the images of the products “in the wild” would be the appropriate stimuli.

For example, in a recent research-on-research project here at Applied Marketing Science, we investigated whether irreparable harm existed in the case of Puma v. Forever 21. In this case, Puma sought a preliminary injunction against Forever 21, after the popular fashion retailer began producing alleged knockoffs of Puma’s Fenty line of shoes. In our survey, in addition to providing an image of each pair of shoes, we also provided respondents with the brand name and model of each pair of shoes, retail price of each pair of shoes, along with a description of the materials the product is made of. Respondents were instructed to view the information provided closely, as if they saw it while out shopping for shoes.

Q: What is the threshold necessary for irreparable harm to be established?

A: Unlike surveys that test topics such as likelihood of confusion or false advertising, when measuring brand prestige, there is no definitive percentage that must be met in order to show a diminishment of brand prestige. Rather, here we are measuring whether the ratings for brand prestige between the Test group and Control group are statistically significantly different from one another. For a significant diminishment of brand prestige to exist, the ratings for the Test group need to be that much lower than the ratings for the Control group. This difference can be statistically tested with an independent samples t-test, where we compare the ratings of those in the Test group against ratings of those in the Control group. Again, there is no percentage of irreparable harm that must be met. Instead, we are interested in whether the ratings significantly differ between respondents that saw the senior user and allegedly-infringing products together vs. respondents that saw the senior user and non-contested non-infringing products together.

Q: Is this kind of survey enough to show both irreparable harm and likelihood of confusion?

A: The simple answer is no. The survey design we propose for proving irreparable harm should only be used for just that- proving irreparable harm. The results of this survey only tell us whether a diminishment of brand prestige has occurred as a result of the emergence of an allegedly-infringing product in the marketplace. In order to test for likelihood of confusion, a separate survey would be required that follows the traditional formats for establishing confusion among products and brands.

Q: What is the estimated cost for running a survey that provides evidence of diminishment of brand prestige?

A: Just like with any survey conducted in litigation, much of the cost depends on the population or sample we are trying to reach. If the population is relatively easy to reach, then we have a higher incidence, and this helps keep the costs down. However, if this population is more difficult to reach, we would have a lower incidence, and that would bring the cost up.

Beyond the feasibility of getting respondents, the cost for this kind of survey is in the general price range of a likelihood of confusion survey. But again, that will largely depend on the incidence or feasibility of reaching our desired population.

To learn more about proving irreparable harm with consumer surveys, watch our webinar on demand.

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Likelihood of Confusion