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Using the Squirt Survey Format to Measure Likelihood of Confusion

Kimberly White — Tue, 07 Aug 2018 22:23:08 +0000

There are two commonly accepted likelihood of confusion survey formats, including the “Squirt” format, and the “Eveready” format. This article addresses Squirt surveys, which are also known as “Lineup” surveys. For information on the Eveready format, please visit our “Using the Eveready Survey Format to Measure Likelihood of Confusion” page.

Squirt Survey Format

The name “Squirt” comes from a survey format conducted in 1980, in SquirtCo v. The Seven-Up Company. SQUIRT was a trademark of SquirtCo. When the Seven-Up Company introduced QUIRST, SquirtCo argued that the similarity of names was confusing to customers.

A survey measured the likelihood of confusion between the two names. In the SquirtCo v. The Seven-Up Company likelihood of confusion survey, respondents were exposed to radio ads for both SQUIRT and QUIRST and then asked whether they believe that SQUIRT and QUIRST were made or put out by the same company or by different companies. To reiterate, respondents were exposed to the trademarks of both the senior and junior users.

Although elements of this format for measuring likelihood of confusion have changed and evolved over the years, the core idea remains that marks from both parties are shown to respondents. The Squirt format for likelihood of confusion surveys is different from an Eveready, as only the defendant’s product are shown when using the Eveready survey format.

Squirt surveys may be conducted in a variety of ways, depending on the specific nature of the market context. In one common format for a Squirt survey, one product or trademark is shown by itself first, followed by a lineup that includes the other product or trademark and other similar products or trademarks. Because of the use of an array, the Squirt format is sometimes called “lineup.”

As marks from both parties are shown to respondents, the Squirt or lineup format for likelihood of confusion surveys replicates conditions under which marks have marketplace proximity. As one author has stated, this format is used when marks “… are simultaneously or sequentially accessible in the marketplace for comparison. It relies on the ‘proximity’ factors (e.g., overlapping customers, channels of trade and advertising) in a likelihood of confusion analysis, rather than on the strength factor, as its market replication rationale.”[1]

An Example of the Squirt Survey Format: Crystal Head Vodka

In the matter of Globefill Incorporated v. Elements Spirits, Inc., Globefill Incorporated’s Crystal Head Vodka alleged that consumers would be confused into believing that Elements Spirits, Inc.’s KAH Tequila’s skull-shaped bottles of tequila were made or authorized by Crystal Head Vodka, which sells vodka in skull-shaped bottles.

Dr. Isaason’s Squirt Survey

Dr. Bruce Isaacson conducted a Squirt survey to measure the likelihood of confusion between KAH Tequila and Crystal Head vodka.

Dr. Isaacson’s Squirt survey focused on the junior user’s universe, by measuring confusion among tequila drinkers, and was conducted in person. Respondents were shown actual bottles of tequila, which replicates a scenario in which a consumer in a retail location, such as a liquor store, sees Crystal Head and then sees KAH amongst other tequila bottles.

Respondents were asked several questions commonly used with Squirt format surveys. For example, respondents were asked questions to measure confusion as to source, and as to sponsorship or approval.

Results indicated that there was a likelihood of confusion between the accused bottle of KAH tequila and Crystal Head vodka. Dr. Isaacson testified about his survey during the trial, and the jury found in favor of Crystal Head in March 2017.

Conducting Your Likelihood of Confusion Survey

For help with your next Squirt survey to measure likelihood of confusion, contact the survey experts at MMR Strategy Group.

[1] Swann, Jerre B., “Likelihood of Confusion Studies and the Straightened Scope of Squirt”. The Trademark Reporter, May-June 2008, p 755-756.

Kimberly White
Research Director
MMR Strategy Group

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Using the Eveready Survey Format to Measure Likelihood of Confusion

Kimberly White — Tue, 07 Aug 2018 22:21:48 +0000

There are two commonly accepted likelihood of confusion survey formats, which are known as the “Eveready” format, and the “Squirt” format. This article addresses Eveready surveys. For information on Squirt surveys, please visit our “Using the Squirt Survey Format to Measure Likelihood of Confusion” page.

Eveready Survey Format

The name “Eveready” comes from a 1976 survey in Union Carbide Corp. v. Ever-Ready, Inc. The plaintiff, Union Carbide, sought action over the use of the mark EVEREADY. Union Carbine had been selling batteries, flashlights, and miniature bulbs under its trademark EVEREADY when the defendant began to sell similar products, including miniature light bulbs. Union Carbide requested “an injunction against Ever-Ready’s use of the term Ever-Ready on or in connection with the advertising or sale of electrical products.”[1]

To examine this issue and “to establish likelihood of confusion between the defendant’s lamps and the plaintiff’s products, [the] plaintiff submitted a survey in which the respondents were shown a picture of the defendant’s lamp.”[2] Respondents were asked who they think puts out the product shown. The survey results indicated that there was an appreciable likelihood of confusion between EVEREADY and Ever-Ready.

The Eveready survey method is most often used in matters involving well-known marks, so that “… the senior mark is top of mind, i.e. highly accessible (internally available) in memory, enhancing the likelihood that it will be cognitively cued by a similar junior use.”[3]

In cases of forward confusion, the Eveready survey format typically exposes respondents to a junior mark to see if the junior mark calls to mind a senior mark that is already in the minds of consumers. In cases of reverse confusion, the Eveready survey format might expose respondents to a senior mark to determine whether that mark calls to consumers’ minds a well-known junior mark.

An Example of the Eveready Survey Format

Voice of America (VOA) is a news source funded by the United States government and owned by the Broadcasting Board of Governors (BBG) that has provided news and other information since 1942. Robert Namer, an individual, used “Voice of America” as the name of his company, radio program, and website domain (www.thevoiceofamerica.com). Both the Voice of America operated by the BBG and Mr. Namer used “Voice of America” to provide news. In 2000, the BBG sent Mr. Namer a letter demanding that he cease use of the name. Several months later, the BBG submitted a complaint and Mr. Namer was ordered to transfer the domain name “thevoiceofamerica.com” to the BBG.[4] Mr. Namer then filed a lawsuit against the BBG and VOA.

In the matter of Robert Namer v. Broadcasting Board of Governors and Voice of America, each of the parties argued that they should be able to use the name “Voice of America” to represent their services. The BBG claimed that Mr. Namer’s audience members could be confused by the similarities between Mr. Namer’s use of the domain, “www.thevoiceofamerica.com” and the BBG’s “Voice of America” service mark.

Dr. Isaason’s Eveready Survey

Dr. Bruce Isaacson conducted an Eveready survey to measure likelihood of confusion between the two marks.

Dr. Isaacson’s likelihood of confusion Eveready survey interviewed respondents ages 18 and older who had visited a website to read political or economic news or commentary in the past month. The study was conducted online. Respondents were shown one of two images, either Mr. Namer’s “thevoiceofamerica.com” website, the test version, or a website that replaced “thevoiceofamerica.com” with a different name, the control version. Survey respondents were shown either the test or control version of Mr. Namer’s website. Respondents were never shown any website or images from the Voice of America website operated by the BBG.

Respondents were asked several questions to measure the likelihood of confusion in accordance with the Eveready survey format. For example, respondents were asked what company, organization, or person operates the website they were shown.

A notable percentage responded that they believed that Mr. Namer’s website was operated by, or affiliated or connected with, BBG’s Voice of America. These results indicated that there was a likelihood of confusion between the junior user, thevoiceofamerica.com, and senior user, Voice of America.

As a result of Dr. Isaacson’s likelihood of confusion Eveready survey, and other evidence, the court granted BBG’s request for a permanent injunction, barring Mr. Namer from the use of “Voice of America.”

Conducting Your Likelihood of Confusion Survey

For help with your next Eveready survey to measure likelihood of confusion, contact the survey experts at MMR Strategy Group.

[1] “Union Carbide Corporation, Plaintiff-appellant, v. Ever-ready Incorporated, a Corporation, and Mark Gilbert, An individual, Defendants-appellees, 531 F.2d 366 (7th Cir. 1976).” Justia Law. N.p., n.d. Web. 17 July 2017. http://law.justia.com/cases/federal/appellate-courts/F2/531/366/203240/.

[2] Handelman, Jeffery A. Guide to TTAB Practice. New York: Wolters Kluwer Law & Business/Aspen, 2017. 18-20. Print.

[3] Jerre B. Swann, Likelihood of Confusion, in Trademark and Deceptive Advertising Surveys: Law, Science,and Design (2012) at 53, American Bar Association.

[4] Beise, Cheryl, J.D. “Website Operator Barred from Using “Voice of America” Mark.” Law News | Law Daily Reporting Suite — Wolters Kluwer Law & Business. Intellectual Property Law Daily, 7 Nov. 2014. Web. 18 July 2017.

Kimberly White
Research Director
MMR Strategy Group

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When Not To Conduct an Advertising Claim Substantiation Survey

Justin Anderson — Mon, 06 Aug 2018 16:52:54 +0000

An Advertising Claim Substantiation Survey Gone Wrong

Survey results indicating that Schmidt’s deodorant helps consumers feel dry do not substantiate an advertising claim that the deodorant absorbs wetness. That is the opinion of the National Advertising Review Board (NARB) of the Council of Better Business Bureaus regarding advertising claims made by Schmidt’s Deodorant Company. (For a press release about the decision, click here.)

Schmidt’s Deodorant Company made advertising claims indicating that its deodorants absorb and provide protection against moisture and wetness. Tom’s of Maine, Inc. challenged Schmidt’s claims before the National Advertising Division (NAD). As part of its defense, Schmidt’s relied on the results of a consumer survey.

MMR was not involved in this matter. However, according to the press release about the NARB decision, the Schmidt’s survey consisted of a product test in which 209 consumers used Schmidt’s deodorant for 3 days and then completed an online survey about the deodorant. According to Schmidt’s, the results of the survey indicated that Schmidt’s deodorants helped consumers feel dry.

However, NAD found, and NARB agreed, that the results of a survey measuring consumers’ feelings of dryness do not support an advertising claim regarding the efficacy of a deodorant’s moisture absorption.

When To – and Not To – Conduct an Advertising Claim Substantiation Survey

This example illustrates an important characteristic of advertising claim substantiation surveys. Surveys can measure consumer behaviors, attitudes, preferences, and other subjective opinions. However, consumers may not be able to provide objective evaluations of product performance – especially for product benefits that consumers cannot detect.

In the example, Schmidt’s conducted a survey asking consumers to use its deodorant and evaluate whether it helped them feel dry. That calls for consumers to evaluate whether they feel dry after using Schmidt’s deodorant. Consumers are able to make such a determination based on their own sensory perception of dryness.

However, there are some product benefits that a consumer may not be able to detect. In this example, although consumers can evaluate whether they feel dry, the NAD and NARB decided that consumers cannot provide an objective evaluation of how well a product absorbs moisture. Schmidt’s provided results of independent laboratory testing, which measured the moisture absorption rate of Schmidt’s deodorants. While such lab testing may be able to provide an objective measurement of absorption, the NAD and NARB decided that consumers cannot evaluate this objective product performance metric.

Advertising Claim Substantiation Surveys Can Provide Support for Subjective Consumer Evaluations

Advertising claim substantiation surveys can provide support for claims about subjective consumer attitudes or other product characteristics that consumers can evaluate. For example, the NAD or NARB might have been more receptive to a survey supporting a claim that Schmidt’s deodorant helps consumers feel dry, or that a certain percentage of consumers who tried Schmidt’s deodorant reported feeling dry.

Advertising claims about objective product performance benefits that cannot be evaluated by consumers should not rely on consumer surveys. The claim in this example was an objective claim about the absorption performance of Schmidt’s deodorant. Laboratory testing might be able to provide substantiation for such a claim, but NAD and NARB decided that the consumer survey was not sufficient to substantiate such an objective product efficacy claim.

Learn More About Advertising Claim Substantiation Surveys

To learn more about advertising claim substantiation surveys, contact the survey experts at MMR Strategy Group.

Dr. Justin Anderson
Vice President
MMR Strategy Group

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How Consumer Insights Can Help You Gain Retail Support

Dominique Romanowski — Fri, 07 Jul 2017 21:29:31 +0000

One of the most powerful aspects of marketing research is how the consumer insights generated by research studies can result in greater retail support and distribution. In a number of projects, I have seen manufacturers share consumer insights with retail partners, leading to retail support for initiatives, such as new product launches, changes in brand positioning and new packaging, and additional presence in stores.

If you are a manufacturer, Attitude and Usage (A&U) studies are a good example of marketing research that can yield insights useful to retailers. A&U studies are sometimes also referred to as AA&U (Advertising, Attitude & Usage) or U&A (Usage & Attitude) studies. As this blog explains, to get all the mileage possible from your A&U, keep your retailers in mind as you plan the research.

Craft Your A&U with Retailers in Mind

A&U research, if well-crafted, can help build retail support for your brand. A&U planning usually starts with market and brand objectives, as the marketing and research team focuses on what problems need to be solved, what issues need to be understood, and what types of information needs to be collected. If your marketing initiatives need retail support to be successful, when planning your A&U, consider what information about your brand, your customers, and their customers would be valuable to your retailers.

Examples of How Sharing Consumer Insights Can Help You Gain Retail Support

Here are a few case studies about how sharing consumer insights from A&U research with retail partners can help gain their support for marketing initiatives. Company names are withheld to protect confidentiality.

Gaining Retail Support for a Beauty Care Brand

The first example concerns a brand leader in a highly profitable niche segment of the beauty care market, focused on products for eyes. Management wanted to expand the brand into higher volume beauty categories. They decided to focus on one key retailer, a nationwide retail specialist in the beauty care market, and decided to approach the retailer with information from an Attitude & Usage study, to make the case for their expansion into the new categories.

The A&U focused on two types of consumers, including consumers who purchase the manufacturer’s brand, and consumers who shop for certain beauty products at the retailer. The survey included questions about perceptions of the brand and its competitors, the shopping experience at the retailer, reasons for purchasing or not purchasing certain beauty products at the retailer, and key factors for brand selection. Questions also explored which new product categories might be most appealing to consumers.

Using consumer insights from the A&U, management crafted a brand story with data supporting how the brand’s launch of new products at the retailer would increase loyalty and sales among existing customers. The retailer loved the pitch and agreed to the launch.

Gaining Retail Support for a Kitchen Appliance Brand

The next case study concerns a European brand of high-end kitchen appliances, relatively new to the U.S. market. The brand is sold at retail showrooms with consumers typically assisted by knowledgeable salespeople.

Management wanted to expand into new product categories and also to expand their presence in the U.S. market, possibly with increased advertising. To achieve these goals, management realized that they needed to better understand why consumers were buying their brand, which would guide the development of any new advertising, and make their brand and products meaningful and relevant to consumers.

Management turned to an Attitude & Usage study to understand the U.S. consumer.

A section of the A&U focused on the sales process among current and potential customers. It explored the consumer experience at retail, from awareness to consideration to purchase.

Management shared consumer insights from the A&U data with retailers. They were able to increase the number of items on display and gain better in-store locations for their displays. Information from the A&U was also instrumental in gaining retail support for brand launches of several new kitchen appliances.

Gaining Retail Support for a Skin Care Brand

This case study concerns a leading niche skin care brand, sold mostly in specialty retailers and online. This company’s products served a particular segment of the natural skin care market, and this niche was small but growing rapidly. Management wanted to understand how to expand the brand beyond this narrow niche, to capture some of the mass market. Management also wanted to attract new users while maintaining the loyalty of core customers.

The A&U focused on potential consumers in the mass market and loyal users of the brand. Some parts of the research explored purchase behavior, including product characteristics and benefits that impact brand selection, and aspects of the retail experience that impact brand selection.

Management shared the consumer insights from the A&U data with mass market retailers, gaining support for a new brand positioning, new packaging, and additional shelf space.

Gaining Retail Support Through A&U Research

Consumer insights from A&U research can be used as powerful sales tools. When A&U studies are well crafted, they form the basis for compelling brand stories that, when shared with retailers, can directly help build sales. For more information, contact us at info@mmrstrategy.com.

Dominique Romanowski
Vice President
MMR Strategy Group

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Playing Nice with Legal

admin — Fri, 30 Sep 2016 07:50:04 +0000

In his article, “Playing Nice with Legal,” in the January 2013 issue of Quirk’s Marketing Research Review, MMR Strategy’s President, Dr. Bruce Isaacson, uses a fictional cake mix as an example to outline best research practices in claim substantiation.

This article provides practical guidelines to help you make sure your substantiation can support your claims. It focuses on:

Claims involving consumer perceptions
Types of claims and burdens for substantiation
How to increase the likelihood that your claim is in compliance

Fill out the form to learn how research can help keep your marketing claims in compliance.

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Asking the Right Questions: Optimizing Trademark Litigation Survey Design

admin — Fri, 30 Sep 2016 07:34:13 +0000

In the October 2012 issue of Intellectual Property Magazine, MMR Strategy’s President, Dr. Bruce Isaacson, discusses the importance of question phrasing in trademark litigation surveys.

Relatively little has been written about how to phrase survey questions, a critical component of a litigation survey. A survey expert designing a litigation survey will likely spend many hours and much deep thought on this topic, and courts often look at question phrasing to see whether a survey is reliable and non-biased.

This article provides three practical guidelines and offers how-to advice for aiding experts in the proper design of survey questions, and can aid those who evaluate such surveys in determining whether the survey questions are likely to produce reliable data:

Survey questions must be written so they can be clearly understood by survey respondents.
Survey questions must be phrased to address the issues in dispute.
Survey questions must be phrased in a non-biased and non-leading manner.

Fill out the form to learn how to ask the right questions in litigation cases.

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[White Paper] Why Online Surveys Can Be a Smart Choice in Intellectual Property Litigation

admin — Fri, 30 Sep 2016 07:23:27 +0000

This white paper examines the pros and cons of a fast growing, court-accepted research method – online consumer surveys. Find out why they are quickly becoming the standard in certain IP cases.

You’ll learn how to:

Differentiate and evaluate the different modes of data gathering
Properly execute online research for litigation surveys
Ensure validation – an important consideration in litigation surveys
Decide which research mode is most appropriate for a Lanham Act survey

The post [White Paper] Why Online Surveys Can Be a Smart Choice in Intellectual Property Litigation appeared first on MMR Strategy Group.

[White Paper] MaxDiff vs. Conjoint: Which is Better to Measure Consumer Preferences?

admin — Fri, 30 Sep 2016 06:06:20 +0000

Marketers who design products, services, and ads need to know which features or elements customers prefer–which positioning is most effective, which price is optimal, and which features must be included.

A new and powerful methodology, called MaxDiff, can help answer this question. In this paper you will find out:

How other methods compare with MaxDiff
When and where to use MaxDiff
How you can use MaxDiff to rank highly diverse features and attributes from most preferred to least preferred
How to develop output that is easy to interpret

Fill out the form to learn more about this powerful method to help you measure customer preferences.

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[White Paper] Critical Research Steps and Core Principles of Claim Substantiation

admin — Thu, 29 Sep 2016 12:43:51 +0000

Claims are the foundation to convey the benefits of products and services in today’s crowded marketplace. Advertising substantiation provides supporting evidence for claims made in locations such as ads, point of sale materials, brochures, and packaging.

This paper discusses how such evidence must be gathered for claim substantiation when consumer perceptions are involved.

You’ll learn the core steps involved in claim substantiation, and the principles that help guide each step, including how to:

Decide which claims to test
Select which products or services to test
Conduct claim substantiation research and analyze claim substantiation data
Select claims to use in the marketplace

Fill in the form to the right to learn more about substantiation for sensory claims.

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[White Paper] Sizing the Potential of a New Market or New Product

admin — Thu, 29 Sep 2016 12:42:10 +0000

New markets and new products provide the engine of growth for many companies.

When considering a possible new category or a potential new product, one of the most important tasks is estimating the size of the category or projecting possible demand for the new product.

This white paper discusses how to size a new product or a new market. You’ll learn how to:

Differentiate between products that are radically new versus incrementally new
Measure potential demand for a very new product using internal and external benchmarks
Project the size of a new market for a new product or a new service using syndicated and survey data

Fill out the form to learn about powerful quantitative tools to help you launch innovations and enter new markets.

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