Duracell, the battery manufacturer, filed a trademark infringement action against vape company What A Smoke LLC. Discover how these proceedings show how adjudicators use empirical evidence of consumer research where the likelihood of confusion is central to the claim.
Case Background
What A Smoke LLC manufactures and sells electronic cigarettes under the trademark “Optimum.” Products are sold primarily through trade shows and retail at approximately $200 each. The vaporizers contain lithium-ion batteries, but batteries are not visible on the product or its packaging and are not sold separately.
Duracell is a brand-name manufacturer of alkaline batteries, featuring copper-and-black trade dress. Duracell batteries are distributed through national retailers, online, and in a variety of settings.
Duracell launched the “Optimum” line of batteries in 2019, priced between approximately $1.50 and $2.00 per unit. Later that year, What A Smoke, which previously secured trademark rights for Optimum-branded vapes, filed a trademark infringement lawsuit against Duracell. Duracell asserted other claims and moved for summary judgment. The central issue was whether consumers were likely to be confused between Duracell’s Optimum batteries and What A Smoke’s Optimum vaporizers.
Reverse Likelihood of Confusion and Survey Evidence
Duracell retained a survey expert to design and administer two reverse confusion surveys, conducted in 2019 and 2021. The surveys were designed to measure whether consumers of vaping products believed that What A Smoke’s Optimum vaporizers were affiliated with, sponsored by, or approved by Duracell. The surveys were designed to measure reverse confusion, which occurs when consumers believe that a smaller, senior trademark user’s product is affiliated with or authorized by the larger, more well-known junior user.
The expert concluded that the survey’s results showed no statistically significant evidence of consumer confusion. What A Smoke did not submit consumer survey evidence, despite having several years to do so during the pendency of the litigation.
The Decision
The US District Court for the District of New Jersey evaluated the trademark claims under the ten-factor test articulated in Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983). Among these factors, evidence of actual consumer confusion is often given substantial weight. In granting summary judgment in favor of Duracell, the court mentioned the absence of evidence supporting a likelihood of confusion. The court noted that Duracell’s survey expert found no meaningful confusion in two separate studies and that What A Smoke had failed to present any competing survey evidence. Taken together with other Lapp factors, the lack of evidence of consumer confusion supported dismissal of the claims.
IMS’s Survey Evidence Expertise
Courts frequently accept properly designed and executed surveys as evidence of likelihood of confusion. IMS Legal Strategies designs, executes, and testifies about surveys in trademark infringement actions. If you are involved in a dispute where likelihood-of-confusion surveys are needed, contact us today.
