A critique of legal measures of brand confusion

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.