Keywords

trademark infringement, likelihood of confusion, expert triangulation

Abstract

This Article highlights contributions that linguistic analysis can offer in the assessment of the likelihood of confusion in trademark infringement cases. Parties in such cases often engage an expert witness to conduct a survey that measures the likelihood of consumer confusion. We show how an expert linguist can provide important, nonintuitive dynamics of corroboration. We introduce “expert triangulation” as a conceptual framework to analyze whether, and to what extent, experts in linguistics and consumer surveys can corroborate one another. That is, having two different sources of empirical evidence which lead to similar conclusions should be a benefit to the courts, allowing them to have greater confidence in the veracity of empirical conclusions. But the increased value to the courts is not uniform across all cases. The extra value provided by the testimony of an additional expert depends on (1) the similarity of the scientific discipline and training of the two experts, (2) the similarity of the data and analytical methods used by the two experts, and (3) the extent to which the two experts work together during their research process. Corroboration is maximized when experts are different from one another on all three dimensions. From the perspective of “expert triangulation,” we conclude that linguists and survey researchers have the potential to offer sizable corroboration to one another. We explore that potential by analyzing the comparative strengths and limitations of linguistic analysis and consumer surveys in the context of trademark confusion cases. Finally, we illustrate the process by describing the mutually corroborating contributions made by a linguistics expert and a consumer survey expert as part of a recent federal trademark confusion case.

Original Publication Citation

DeRosia, Eric D., Jesse Egbert, and Thomas R. Lee (forthcoming), “Triangulating the Likelihood of Confusion: Consumer Survey Evidence and Corpus Linguistic Analysis,” BYU Law Review.