A critique of legal measures of brand confusion

Date01 November 2002
Published date01 November 2002
AuthorVincent‐Wayne Mitchell,Íde Kearney
Subject MatterMarketing
A critique of legal measures of
brand confusion
Vincent-Wayne Mitchell
Professor of Marketing, Manchester School of Management, UMIST,
Manchester, UK
Âde Kearney
J.P. Morgan Chase, London, UK
Keywords Consumer behaviour, Brand identity, Market research, Trade marks,
Abstract As the number of imitator brands has risen, so too have legal actions for
trademark infringement and passing off, because of consumer confusion, unfair
misappropriation of brand owners' intellectual property, and lost sales revenue.
However, recourse to the law is time-consuming, expensive, and can be unpredictable
because of the highly subjective and inconsistent ways in which brand confusion is
measured and proven. The formulation of more standard measures of marketplace
confusion would have significant time and cost advantages for market researchers and
lawyers. Using data from key informant interviews with expert legal professionals,
critiques the current measures of consumer confusion and shows that in UK law
confusion must result in mistaken behavior and any measure of behavior must be taken
in situ within shopping environments. Shows most important legal measures of confusion,
namely, subjective judicial analysis and witness testimony, to be methodologically flawed.
Discusses implications for manufacturers, brand owners and legal policy and practice.
Increased business competition has fuelled product-line extension strategies
and retailer labels, both of which can cause consumer confusion (Burke and
Srull, 1988). From a psychological perspective, confusion can be viewed as
an attitude, that is, ``a form of experience that (a) refers to specific objects ...
and is (b) primarily evaluative'' (Eiser and van der Pligt, 1988, p. 1).
Consumer confusion concerns a type of subjective experience (i.e. an
unpleasant state of mental discomfiture) relating to an object, usually a
brand, that affects the overall evaluation of that object. Thus, we argue that
consumer confusion is an attitude and as such can be viewed as having
behavioral, cognitive and affective components (Rosenberg and Horland,
1960) which can be used to categorize, compare and analyze different
measures. As a consequence of confusion, individuals mix-up, misidentify,
or make ``wrong'' (i.e. ill-founded) inferences about products and/or
erroneous product selections. Surveys reveal that 22 per cent of British
shoppers have at one time or another purchased the wrong product
(Supermarketing, 1994a, b; Rafiq and Collins, 1996), and between 9 per cent
and 17 per cent had done so in the previous six months (British Brands
Group, 1997). However, these studies may underestimate the incidence of
consumer confusion because:
.some ``consumer confusion'' may be unconscious and is therefore never
noticed or reported; and
.confusion is often attributed to personal inattentiveness as opposed to
product similarity because consumers make the mistake in the context of
The research register for this journal is available at
The current issue and full text archive of this journal is available at
Consumer confusion
JOURNAL OF PRODUCT & BRAND MANAGEMENT, VOL. 11 NO. 6 2002, pp. 357-379, #MCB UP LIMITED, 1061-0421, DOI 10.1108/10610420210445497 357
An executive summary for
managers and executive
readers can be found at the
end of this article
``hurried'', low-involvement supermarket shopping (Miaoulis and
D'Amato, 1978).
Nonetheless, these mistakes can be serious; as in the case of the 33 adults
and 45 children in Maryland (USA) who ingested Lever Brothers Sunlight
dishwashing liquid thinking it was Minute Maid's Lemon juice (Reiling,
1982). Consumer confusion is of particular interest to brand owners because
they stand to lose revenue when consumers mistakenly purchase an imitation
brand, and any subsequent switch in brand loyalty, as well as suffering a
weakening or dilution of their brand's distinctiveness, if the rival brand looks
the same. Indeed, in a recent survey, 24 per cent of shoppers thought that all
brands of some product categories were made by the same manufacturers
(Mintel, 1998). Manufacturer brand owners also note that because they do
not receive any royalties from imitation brands, then on an ethical level these
production similar looking brands amount to a misappropriation of
intellectual property.
Despite there being a number of recent and well-publicized UK legal
disputes involving imitation brands (e.g. United Biscuits ``Penguin'' versus
Asda's ``Puffin'' (United Biscuits, UK Ltd v. Asda Stores Ltd [1987] RPC
513; the Neutrogena/Nuetralia dispute (Neutrogena Corp.v.Golden Ltd
[1996] RPC 473, the actual incidence of legal claims alleging ``confusion'' is
difficult to gauge because the majority of these disputes are settled prior to
trial. For example, Sainsbury's ``Classic Cola's'' label design (which was
contentiously similar to ``Classic Coke'') was voluntarily modified by the
retailer following complaints (The Economist, 1994). The law struggles to
deal with disputes of passing-off and trademark infringement litigation
because: both can be evidentially intensive, requiring costly market research;
there can be long delays before an action goes to trial; the courts use a
variety of techniques to assess the existence and extent of confusion; and
there is little consensus on what legally constitutes confusion. Some of these
difficulties result from a lack of legal appreciation of confusion as a complex
psychological construct, but even in the consumer research field, confusion
measurement is fraught with conceptual difficulties and inconsistencies.
Given the potential costs of bringing or defending a legal action and the
severity of possible punishments, there are compelling practical reasons for
formulating a standardized confusion measure that is legally and
scientifically acceptable. The lack of a universal definition of confusion and
standard ways of measuring it means that the parties have an incentive to
gather as much evidence as possible, using a variety of measurement
instruments, to support/refute a claim of confusion. This can mean a lot of
time and money being spent on market research. In the meantime, the
principle of ``status quo'' tends to delay positive judicial intervention prior to
a trial, which means that injunctions are not normally issued. This paper
explores areas of overlap between legal and consumer research ideas about
confusion and critiques the methods currently available to assess brand
confusion. While doing this, we develop an understanding of what type of
confusion the law is referring to and, therefore, what type of confusion
measure market researchers should use.
Issues with measuring legal confusion
Differences exist within each country's legal system. For example, survey
questions which ask the respondent if he or she spots similarities between
contested marks/products are not helpful in the UK as the ability to spot
similarities means there is no confusion. The question works in the USA
because there the test is for unfair competition, but there is currently no law
Legal disputes
Differences in legal systems

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