Brand Confusion: Empirical Study of a Legal Concept
Résumé
Each year, hundreds of own-label products appear on the shelves of major multiple retailers that "look" like successful brands. The close imitation of a national brand trade dress aims at creating a "halo of resemblance," on the basis of which consumers may make inferences and attributions of similarity of use, of content, if not of origin. In most countries, imitation is condemned if there is a risk of confusion. But the final decision as to whether or not such a risk exists is left up to the judge. The purpose of this paper is to test for the presence of confusion by means of a tachistoscopic experiment. It aims at bringing empirical data into the courtroom. Hence, it relies on the operational definition used by courts to evaluate the likelihood of confusion. This research demonstrates that the risk of confusion is real. It also shows how this confusion operates. Finally, it raises some important ethical issues in the face of the fact that many copied brands hesitate to engage lawsuits.