Why Isn't the Eveready Survey Actually Called the "Cadillac" Survey?

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Why Isn't the Eveready Survey Actually Called the "Cadillac" Survey?, Op. 1 No. 48

The Eveready Survey has been a staple in trademark litigation for decades. This survey format originates from its 1970s namesake, Union Carbide v. Ever-Ready, Inc., 532 F.2d 366 (7th Cir. 1976).

There, Union Carbide--the purveyor of Eveready? brand batteries for decades--sued Defendant for using "Ever-Ready" on lamps and light bulb blister packs.

Union Carbide presented consumer surveys with respect to both products. The survey format showed respondents either the lamp or the blister packs and asked: (1) Who do you think puts out these lamps/mini-bulbs?; and (2) Please name any other products put out by the same concern which you think puts out these lamps/mini-bulbs.

But this actually wasn't the first time this survey format had been presented to a Court. More than a decade earlier, another iconic U.S. company--General Motors--sued to stop the use of "Cadillac" on a new line of boats by the Cadillac Marine & Boat Company. GMC v. Cadillac Marine & Boat Co., 226 F. Supp. 716 (W.D. Mich. 1964).

There, General Motors presented survey evidence in support of its claims. The survey format presented a Cadillac boat advertisement to survey respondents and asked them: (1) Who do you think puts out the boat shown on the opposite pages?; and (2) Will you please name anything else you think is put out by the same concern? GMC, 226 F. Supp. at 736-737.

So, then, why all these years later does the Eveready survey get all the glory while the Cadillac version sunk to fathoms below?

The key lies in that old adage that is frequently (mis)attributed to Winston Churchill: “History is written by the victors.”

In GMC, the trial court rejected the survey evidence, finding that the results were ambiguous and that the second survey question was "leading." As GMC opined, "[t]he survey is inconclusive and it falls far short of evidence of sufficient probative value to rise to the dignity of preponderating evidence." Id. at 738.

By contrast, more than a decade later Union Carbide put its stamp of approval on Plaintiff's survey and the results:

The lamp survey showed substantial likelihood of confusion. The percentage of the interviewees confused was far in excess of the percentages which have been held sufficient to establish likelihood of confusion. Though the bulb survey cannot be credited to the extent of the lamp survey, we believe likelihood of confusion regarding the bulbs was also shown.

Union Carbide Corp., 531 F.2d at 388.

Union Carbide also pointed out that the Cadillac survey was "sloppy" in that the sample included non-purchasers of boats, was conducted by two college students, and the tabulations were inaccurate. Id. at 386.

Similar survey format, with similar questions, but dissimilar judicial outcomes. The contrast between the two cases underscores the importance of precision in survey methodologies.

Now you know why the Eveready is often times considered the "Cadillac" of likelihood of confusion surveys.

Post script: Below is a copy of Cadillac Marine's trademark application as published in the Official Trademark Gazette in 1956. Pretty easy to see why GM was not particularly thrilled with it...