Jacoby on Sponsorship Confusion

By Eric Goldman

Sorry for the light blogging–between my travel/presentation schedule and the Jewish holidays, it has been hectic!

Jacob Jacoby is a leading trademark survey expert/consultant–I imagine he’s been an expert in over 150 trademark cases. He recently posted a paper to SSRN called “Sense and Nonsense in Measuring Sponsorship Confusion” where he deconstructs various methodological failures in surveying consumers about sponsorship confusion. The abstract:

“Section 43 of the Lanham Act prohibits false or misleading misrepresentations of fact that are likely to cause confusion, or to cause mistake, or to deceive as to the sponsorship or approval of goods or services. Examination of case law reveals emerging disagreement across courts on what needs to be assessed when measuring such “sponsorship” confusion. Various issues, including the logic underlying such measurement, are discussed. In the process, the author explains why, from the perspective of both science and law, one approach accepted by courts makes sense while another does not.”