After discussing the psychological and communication factors that suggest disclaimers of the sort typically used in trademark litigation are likely to be ineffective, the article discusses plaintiff’s and defendant’s surveys in Schering Corp. v. Schering AG and Berlex Laboratories
(D NJ 1987) .
Designed by Jacoby, plaintiff’s survey tested three groups of physicians: Group 1 was exposed to a product brochure that contained no disclaimer; Group 2 was exposed to the same product brochure, except for the fact that it contained a typical disclaimer (Schering AG is NOT
connected with Schering-Plough of Kenilworth, New Jersey); Group 3 was exposed to the same product brochure, except for the fact that it contained a “claimer” (Schering AG IS
connected with Schering-Plough of Kenilworth, New Jersey). Defendant’s survey tested physicians assigned to two groups: a disclaimer group and a no disclaimer group. In all instances, the disclaimers were found to be ineffective in reducing confusion to acceptable levels. Download PDF