United States: Trademark Survey Demonstrating Actual Consumer Confusion May Be Sufficient to Prove a Likelihood of Confusion as a Matter of Law

The U.S. Court of Appeals for the Ninth Circuit has held that a survey demonstrating actual consumer confusion may be sufficient to prove a likelihood of confusion as a matter of law. Thane International, Inc. v. Trek Bicycle Corp., 2002 U.S. App. LEXIS 18344 (9th Cir. Sept. 6, 2002).

The plaintiff owns the federally registered trademark TREK for bicycles. The defendant is using the mark ORBITREK for a stationary exercise machine. After the plaintiff sued the defendant for trademark infringement, the district court awarded summary judgment in favor of the defendant, reasoning that no reasonable jury could find a likelihood of confusion between the parties’ marks.

The Ninth Circuit reversed and remanded for trial. The court explained that "evidence of actual confusion constitutes persuasive proof that future confusion is likely." Here, the plaintiff had offered an "extensive survey evidence of actual confusion." According to the plaintiff’s survey, more than 25 percent of the relevant consumer group was confused into believing that the plaintiff was connected with the defendant on account of the defendant’s use of ORBITREK. Notwithstanding the defendant’s criticism of the survey, the court drew all inferences from the survey in favor of the plaintiff on the defendant’s summary judgment motion, holding that the survey alone could be sufficient evidence on which a jury could find a likelihood of confusion. "If a party produces evidence from which a reasonable jury could surmise that an appreciable number of people are confused about the source of the product, then it is entitled to a trial on the likelihood of confusion."