The use of surveys for evidence of consumer confusion is common in trademark infringement cases. However, new applications of theories of confusion as applied to the Internet have created interesting challenges for those who use and design surveys. In this paper, NERA experts Dr. Kent D. Van Liere and Sarah Butler focus on one aspect of consumer confusion—initial interest confusion—and use two examples from recent cases using surveys.

These examples help to articulate some of the challenges in designing surveys for initial interest confusion cases on the Internet, including:

• Locating the correct population;
• Determining the appropriate form of survey administration;
• Determining how to use technical language;
• Setting up the research to accurately reflect the market conditions; and
• Evaluating the appropriateness of traditional trademark survey questions.

The authors also offer suggestions as to how to approach these issues while maintaining the standards of quality, reliable survey research.