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96 J. Pat. & Trademark Off. Soc'y 265 (2014)
Who Cares about the 85 Percent - Reconsidering Survey Evidence of Online Confusion in Trademark Cases

handle is hein.journals/jpatos96 and id is 295 raw text is: Who Cares About The 85 Percent? Reconsidering Survey Evidence Of Online Confusion In Trademark Cases Daniel Gervais* and Julie M. Latskot Abstract There is an assumption in US trademark law that the protection of consumer interests- a traditional pillar of trademark law- is best achieved by enjoining a defendant's use of a mark that creates a likelihood of confusion (with the plaintiff's mark) for 15% or more (sometimes less) of relevant consumers. Courts often use survey evidence to determine the existence of a likelihood of confusion. This article argues that the in- terests of all consumers are relevant in that determination. This means that assessing the costs, if any, imposed on nonconfused consumers should also be part of the equa- tion. This can be accomplished in part by making better use of verbatim answers and by taking a deeper look into the information conveyed by the survey. Likelihood of confusion analyses should be both quantitative and qualitative. *Professor of Law, Vanderbilt University Law School. Director, Vanderbilt Intellectual Property Program. The Authors are most grateful to the Hon. Kent A. Jordan of the United States Court of Appeals for the Third Circuit and to Professor Mark McKenna for their very useful comments on an earlier draft. The opinions expressed, as well as any errors, in the Article, are the Authors' own. t Associate, Dechert LLP, Philadelphia, PA.

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