To Squirt or Not to Squirt? That is The Question.

Welcome to?Lanham Act Surveys for Lawyers, your resource devoted exclusively to making survey evidence discussions fun and informative, with Daubert-proofing tips along the way.?We provide insights and timely updates to help guide trial counsel in developing consumer surveys for use in federal courts, the TTAB, and other ports of call where trademark and advertising disputes are routinely litigated.

To Squirt or Not to Squirt? That is The Question. Op. 1, No. 4

Squirt vs. Ever-Ready. It might be the survey expert's equivalent to boxing's Ali vs. Frazier, basketball's Lakers vs. Celtics, or baseball's Red Sox vs. Yankees.

In cases where likelihood of confusion is being tested with survey evidence, the "Squirt" and "Ever-Ready" formats are the two big dogs on the block. Squirt is frequently cited as being appropriate in those circumstances where the products or services at issue appear in relative close proximity in the marketplace. Ever-Ready is frequently invoked when the allegedly-infringed mark enjoys "top of mind" awareness.

What happens, though, when two products appear side-by-side in the marketplace (suggesting Squirt) and the senior user is well-known or top of mind (suggesting Ever-Ready)? Have we hit a hopeless snag in the survey space time continuum? This was the precise question posed in a recent case involving a certain silver-pouched fruit drink, Capri Sun. Capri Sun GmbH v. Am. Bev. Corp., 595 F. Supp. 3d., 83, 107 (S.D.N.Y. 2022).

There, the makers of Capri Sun sued a former licensee, American Beverage Corp. ("ABC") for multiple claims including breach of contract and trademark infringement. To negate Capri Sun's claim of confusion, ABC's expert deployed three Ever-Ready surveys, showing survey respondents in each survey one of the following ABC pouches:

Based on the results of the three Ever-Ready surveys, ABC's expert opined that there was no confusion between ABC's pouches and Capri Sun's pouches.

Capri Sun cried foul for a variety of reasons, including that ABC "failed to simulate marketplace realities" by using Ever-Ready instead of Squirt. Capri Sun teed up a Daubert motion and argued that because the parties' pouches are encountered side-by-side online and in brick-and-mortar stores, the Squirt format should have ruled the day.

The trial court disagreed. It held that:

"That argument fails because it rests on a faulty legal premise. Capri Sun does not point to any authority that, when the junior and senior products are sold in the same store or on the same website,?Squirt's side-by-side approach is required to be used in lieu of the?Eveready?approach."

Capri Sun GmbH, 595 F. Supp. 3d at 126.

Takeaway. While Squirt is often used when the goods or services are in close proximity in the marketplace, the Court held there is no absolute rule requiring it. Although Squirt and Ever-Ready are the predominant formats, there is a potential "third" approach: an aided Ever-Ready, which is essentially a Squirt/Ever-Ready combination. See, e.g., Sazerac Co. v. Fetzer Vineyards, Inc., 265 F. Supp. 3d 1013, 1017 (N.D. Cal 2017) aff'd, 786 F. App'x 662 (9th Cir. 2019); see also Trademark and Deceptive Advertising Surveys, p. 69 n. 76 (2022). That hybrid format will be the subject of future newsletters, so make sure to subscribe to Lanham Act Surveys for Lawyers to help keep your juices flowing and your batteries charged!

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