Rhode-NYC, a New York–based fashion brand, filed a trademark infringement lawsuit against Rhode, the cosmetics brand launched by Hailey Bieber. The complaint alleged that Bieber launched her cosmetics brand in bad faith, infringing upon Rhode-NYC’s preexisting trademarks. How might consumer surveys play a role in a trademark case like this, if it were to be litigated?
Cosmetic Case Facts
Rhode-NYC LLC owns several trademarks covering apparel, handbags, and accessories. In 2018, Hailey Bieber sought to acquire trademark rights from Rhode-NYC for her planned cosmetics brand, named Rhode after her middle name. Rhode-NYC declined the offer.
In 2022, Bieber launched the Rhode cosmetics line without a prior agreement, prompting Rhode-NYC to file a trademark infringement lawsuit. The fashion company alleged that Bieber’s use of the “Rhode” name would confuse consumers, cause brand dilution, and damage Rhode-NYC’s reputation and goodwill.
This case settled out of court; however, if it had proceeded to trial, how might likelihood of confusion survey evidence have influenced the outcome?
Consumer Confusion in Cosmetics
A central issue in trademark infringement claims is consumer confusion--more specifically, whether reasonable consumers are likely to be misled about the source, sponsorship, or affiliation of a product. Likelihood of confusion surveys provide empirical evidence measuring the likelihood of confusion. If Rhode-NYC and Bieber’s Rhode dispute were to proceed to a trial, would a Squirt or Eveready survey help measure whether confusion exists among relevant consumers?
Two of the most common formats for likelihood of confusion surveys are Squirt and Eveready. A Squirt survey may be appropriate when both trademarks appear in proximity in the marketplace. For example, if both Rhode-NYC apparel and Rhode cosmetics were available through the same retail channels, a Squirt survey could reliably assess confusion. However, if the cosmetics brand were sold exclusively online while the fashion brand sold primarily in retail stores, the lack of marketplace proximity could undermine the validity of a Squirt survey.
Alternatively, an Eveready survey might be considered if Rhode-NYC’s brand enjoys significant consumer awareness. Eveready surveys test whether consumers recognize the accuser’s mark when exposed only to materials from the accused brand. For this format to be effective, the accuser’s mark must be well-known among the relevant audience. If awareness levels are uncertain, experts might first conduct a brand awareness or fame survey. If results of such a survey in this case showed meaningful recognition of the Rhode-NYC mark, then proceeding with an Eveready survey could be justified.
The Role of Survey Design in Trademark Litigation
When designing a consumer confusion survey, brands should consider market context, brand familiarity, and distribution channels, and survey methodology must reflect how consumers encounter the products in real-world conditions. IMS Legal Strategies has extensive experience in designing and conducting Squirt and Eveready format surveys in trademark infringement matters. For reliable consumer survey evidence tailored to your case, contact IMS Legal Strategies.
