A number of issues in trademark litigation may be informed by identifying the extent to which consumers have been exposed to disputed marks.
Specifically, analyzing and understanding the dissemination of messaging involving the asserted and alleged infringing marks, as well as associated consumer impressions derived through that messaging, may help in determining 1) confusion, 2) extent of use, 3) corrective advertising, and 4) market penetration in disputes involving common law rights. Litigants and their experts may consider these elements in order to establish liability and/or quantify damages in trademark litigation matters.
As methods of disseminating consumer messaging have moved toward Internet advertising and social media usage, new data sources and analytical techniques have emerged to help measure the resulting consumer impressions. Web analytics and social media data can be used to supplement traditional evidence in demonstrating the volume, frequency, costs, and sources of consumer impressions of the asserted and alleged infringing marks.
Proving actual confusion or likelihood of confusion in trademark infringement disputes has historically involved use of consumer surveys and the associated issues of:
In recent years, consumers have used social media platforms, review sites, and search platforms to express their opinions and to publish reviews and ratings of products, services, and overall experiences with companies. As a result, host websites have compiled historical information that can chronicle consumer sentiment, reasons for purchase, and purchase intent. Such information can be used to help prove the existence and potential prevalence of confusion.
In many cases, consumers express concerns regarding marketplace confusion on these sites. For example, if a consumer bought a product from an accused infringer using a disputed mark with the impression that he or she was buying from the mark owner, that consumer might comment about this confusion on a social media or review site. Websites that contain this information include Amazon, Yelp, Google, and Facebook. An expert may use specific examples to help prove confusion.
In addition, the ability to count the number of posts demonstrating confusion over a specific time period can help build a stronger argument. Tracking, summarizing, and quantifying customer reviews across website and social media channels may help an expert show that an accused infringer’s actions caused customer confusion in the marketplace. In contrast, the previously described analysis may also help disprove the notion that an accused infringer’s actions caused customer confusion vis-à-vis the plaintiff’s trademark. For instance, if the data show that consumers readily distinguished the accused infringing product from the mark owner’s product, it may be easier to refute the claim that consumers were confused in making their purchase decisions.
Another set of issues commonly examined in trademark infringement litigation involves measurement of the extent of use of the accused infringing marks and quantification of revenues derived through that use. In recent years, companies have expanded their use of social media and search engine optimization (SEO) in promoting and selling their products and services. As a result, various analytical tools have been developed to measure and optimize those digital marketing activities. Using those tools, it is now quite easy for companies to measure numerous variables, including:
Social media and SEO advertising analytics allow companies to directly count and quantify the extent to which consumers viewed, clicked, and were potentially influenced by exposure to trademarks and website information while purchasing products and/or services online. Before companies began using these platforms to sell products, this wealth of information was not available.
Furthermore, various social media sites provide easy-to-capture information on the number of followers, demographics of followers, number of likes, number of tweets/retweets, etc. Such analytical tools and data sources are available to track the impressions and extent of use of accused infringing marks, allowing experts to better understand the volume of consumer exposure to those marks.
This information, in turn, might help an expert identify which customer groups have been exposed to an accused infringing mark and, consequently, which of the accused infringer’s sales may be subject to damages compensation.
A number of third-party websites also provide analytics related to website and social media impressions. These third-party sites track various SEO metrics and website traffic in order to estimate impressions and a company's marketing spend. Customer web searches have grown exponentially since the rise of common search engines such as Google and Bing. In fact, as of May 2016, it was estimated that the Google search engine processes at least 2 trillion searches per year, or approximately 2.3 million Google searches per minute. By comparison, in 1998, the year Google launched, users were only making 500,000 searches per day.
In some circumstances, courts have awarded corrective advertising damages when the mark owner is able to demonstrate that its ability to make effective use of the trademark to identify its products or its company as a source of such products has been harmed. In these cases, it may be useful to demonstrate the volume of improper impressions that have been disseminated into the marketplace.
Again, website analytics and social media data can be a source of relevant information. For example, if the accused infringer ran a social media advertising campaign, it may be possible to obtain certain statistics in the discovery process, detailing:
Such information may be useful in identifying the scale and cost of potential corrective marketing and advertising activities.
When common-law trademark rights are being asserted, it may be important to demonstrate whether and where market penetration has occurred. Historically, the courts have looked to geography-centric tests of market penetration, such as sales volume, growth trends, number of purchasers, and advertising and promotional expenses. For each of these tests, it may be possible to turn to web analytics and social media data as complementary sources of potentially relevant information. For instance, in order to determine the number of purchasers for a particular product, it may be useful to demonstrate the number of website visits, click-throughs, followers, and likes from relevant geographies. Also, expenditures on ad word purchases, banner ads, and other Internet-based promotional methods can be considered in analyses of advertising and promotional expenses.
Furthermore, although there is not yet a body of supporting case law, over the past decade there have been significant paradigm shifts in the way that products are promoted and sold in the marketplace. Using the Internet and various e-tailing methods, companies can easily reach customers in any state or country regardless of the physical location of the seller. It may no longer be relevant to measure market penetration in a boundaried area determined by customer proximity to brick-and-mortar store locations. Instead, future market penetration tests might be more relevant if the defined market area includes the entire U.S. as a monolithic market.
Parties involved in trademark infringement litigation would be wise to take advantage of available web analytics and social media data tools to bolster their cases. Evidence of confusion, extent of use, volume of impressions, and market penetration may all be augmented with a variety of new sources of information, often providing additional insight into consumer interactions with companies and their products and services. In order to take full advantage of this type of information, litigants would be well served by remembering to include related requests during the discovery process.