One of the most widely used and accepted methods for establishing trademark infringement is to conduct a likelihood of confusion survey among the relevant consumer population. Survey evidence in trademark cases can be a powerful and persuasive piece of evidence. It appears that in the recent Nutraceutical Corp. v. Affordable Naturals, LLC case, a survey may have helped the plaintiff in defeating motions for summary judgment.
Plaintiff Nutraceutical sells a product named “Lip Clarity” under the “Simplers Botanicals” line. Nutraceutical does not currently sell a lip balm, lip shimmer, or lip gloss. Defendant Affordable Naturals owns trademark rights to the “Simply” mark for personal care products, namely lip balms, lip glosses, lip shimmers, and other lip-related products. In this case, Nutraceutical alleged that Affordable Naturals infringed on its rights by selling lip balms and other lip products under the “Simply” name.
Nutraceutical asserted claims for trademark infringement, false advertising, declaratory relief, and trademark cancellation. Affordable Naturals moved for partial summary judgment and argued that no reasonable jury could conclude that there is a likelihood of confusion between the marks. The Court agreed and held that Affordable Naturals was entitled to judgment in its favor on all four Nutraceutical claims.
When balancing several factors to analyze whether a likelihood of consumer confusion existed, Judge Warner stated that “evidence of actual confusion in the marketplace may be the best indication of likelihood of confusion” and that such evidence can be introduced through surveys. Here, Nutraceutical fielded thousands of inquiries from consumers and admitted that they did not know of any instance where a consumer mistook a “Simply” branded product for a Nutraceutical product. In addition, Nutraceutical had no survey data showing actual confusion. Accordingly, the Court concluded that the “complete lack of evidence of actual confusion strongly suggests that there is no genuine dispute as to the likelihood of confusion.”
Ultimately the Court held that summary judgment was appropriate because none of the factors suggested a likelihood of confusion. As part of the ruling, Judge Warner stated that Nutraceuticals “only speculate[d] as to how consumers perceive its products in comparison to “Simply” branded products. Accordingly, this is a case where hiring a trademark survey expert to conduct a likelihood of confusion survey would have likely been helpful to Nutraceutical. In other words, a survey measuring consumer perception could have been introduced as evidence to potentially defeat Affordable Naturals motions for summary judgment.
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