One factor underlying consumer confusion, similarity, is well known and considered by most courts in their confusion analysis. The more similar things appear, the more likely we are to confuse them. Reading today’s newspaper, it was only after I got further down in an article that I realized I had misread the name Bart Reynolds as Burt Reynolds. Beyond similarity, there are several other factors that, operating independently — but especially when operating in concert — are likely to generate confusion. The most important of these are context and expectations.
Context can take several forms, including physical, temporal and mental. As an example of mental context, suppose, after being shown the stimulus VII, you were challenged to convert that into the number 8 by using a single line. Most would readily understand they could do this by adding a line at the end, making it VIII. Now suppose , after being shown the stimulus IX, you were challenged to make that into the number 6 by using a single line. BEFORE READING ANY FURTHER, SEE IF YOU CAN SOLVE THE PROBLEM.
In light of the mental context provided by the question preceding the challenge to make IX into the number 6 by using a single line, relatively few people would understand that all they had to do was place the curved line S in front of the IX. Fewer still would come up with the IX6 “X as multiplier, so add a 6” solution. As an example of physical context, consider the two rows of stimuli below. Note how, in the context provided by the top row, the middle item is interpreted as a B while the exact same stimulus is interpreted as the number 13 when seen in the context provided by the bottom row.
Expectations are a third factor that can readily cause confusion. Often, we do not see what is right before our eyes; we see what we expect to see. A tradition in my household has been to buy multiple greetings cards for birthdays, anniversaries, Mother’s Day, Father’s Day and Valentine’s Day, and to distribute these around the home so that the intended recipient will come across them at different times during the day being celebrated. My wife’s last birthday was no exception. I purchased five cards, some romantic, others humorous. But when it came time to distribute these, I could locate only four, and so distributed the four I found. When Valentine’s Day came around three months later, following our custom, I purchased several Valentine’s Day cards, some romantic others humorous. Placing these in my secret hiding place, I found the missing birthday card, a very large romantic one. Thinking it would elicit a chuckle, I included this card among those I distributed around the home on Valentine’s Day. Returning home that day, my wife told me she enjoyed all the cards, especially the very big romantic card I had placed in her dresser drawer. When I said that it was a birthday card I had neglected to give her earlier and not a Valentine’s Day card, telling me I must have been mistaken, she went and brought the card. Upon seeing that it said Happy Birthday in very large letters on the front and then again in smaller letters inside, she couldn’t believe how she had misread the words that were objectively present on the card. There is little similarity between Birthday and Valentine’s Day. It was her expectations that led her astray, causing her to see – or believe she saw — Happy Valentine’s Day when the card actually said Happy Birthday.
Hardly atypical, this example is consistent with considerable psychological research. More than a half century ago, psychologists showed playing cards to respondents where, instead of being black, the clubs were red. When later asked to report what they saw, the respondents reported seeing black clubs. They saw what they expected to see. Consumers in a supermarket or drug store intending to buy familiar brands also carry with them expectations. Especially when an infringer’s mark or dress is similar to the mark or dress on the item they usually buy, it should come as no surprise that consumers’ expectations lead them to see the infringer’s product as the item they usually buy.
Operating independently, similarity, context and expectations increase the likelihood of confusion. This likelihood only increases when two or three of these factors operate jointly. The situation is further exacerbated given the few seconds research has shown most supermarket and drug store consumers spend looking at an item before removing it from the shelf and placing it into their cart. For a deeper understanding of the psychology underlying consumer confusion, see: Jacoby, J. (2001) The Psychological Foundations of Trademark Law: Secondary meaning, acquired distinctiveness, genericism, fame, confusion and dilution. The Trademark Reporter, 91 (5), 1013-1071.