You’ve selected a unique trademark, marketed and sold products under the brand, and continue to build up a base of satisfied customers. But then a new company emerges with a very similar trademark, piggybacking on your success. Even your customers are outraged and post comments about your companies’ similar trademarks. You’re delighted, but can you skip the survey and use these internet comments as evidence of confusion? This article addresses the admissibility of internet evidence and its probative value.
Evidence of Past Actual Confusion Is a Silver Bullet – Effective, but Rare
To determine if your competitor is infringing your trademark, courts evaluate whether consumers are likely to be confused about the source of the products coming from the two trademarks. Examples of actual confusion strongly suggest a future likelihood of confusion. See United States Court of Appeals for the Ninth Circuit Model Civil Jury Instructions No. 15.6. But persuasive actual confusion evidence based on internet comments or search results is uncommon. Even when admissible, internet evidence may not support relevant consumer confusion, or there may be insufficient evidence to show a customer is likely to be confused.
Internet Comments Survive the Hearsay Rule and Are Generally Admissible Evidence
It is often difficult to identify the speaker of online comments. But the statements are not hearsay if they concern the source of products rather than the speaker’s confusion, for example, “Nutella makes great coffee for Starbucks.” In this case, the statements are not offered for the truth of the matter asserted (that Nutella actually makes great coffee for Starbucks). Instead the statement is offered to show assumed association between the parties. FRE 801(c) (2); see, e.g., ABT Systems, LLC v. Emerson Electric Co., Case No. 4:11-CV-00374 AGF, 2013 WL 468501, *1 (E.D. Mo., Feb. 7, 2013) (denying motion in limine to exclude “customer product reviews appearing on the Internet” as long as “not offered for their truth of the matters asserted”). And even if the commenter expressly mentioned her confusion (“I mistakenly thought Nutella made Starbucks coffee”), the comment would be admissible under the state of mind exception to the hearsay rule. FRE 803(3). See JIPC Mgmt. v. Incredible Pizza Co., No. CV 08-04310, 2009 U.S. Dist. LEXIS 133019, *48 (C.D. Ca., July 14, 2009) (finding certain emails were admissible under the state of mind exception since the emails “reflect the correspondents’ belief that [plaintiff] operated defendants’ Tulsa restaurant”).
But Internet Comments Seldom Support Confusion Regarding Source
Instead of showing confusion about the source of a product, typos and misspellings may only show that words are “very close” or that “some people spell badly.” Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 489 (1st Cir. 1981). Since these anonymous speakers will not be available to clarify what they were thinking while they posted their comments, courts have a difficulty attributing the speaker’s error to confusion rather than carelessness. Thus, courts have found that misspellings of a competitor product name on the internet are not evidence of “instances of actual confusion by [a company’s] customers regarding the source of its products.” Groupion, LLC. v. Groupon, Inc., 859 F.Supp.2d 1067, 1079...
