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Brand Confusion: Empirical Study of a Legal Concept

Author

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  • Jean-Noël Kapferer

    (HEC Paris - Recherche - Hors Laboratoire - HEC Paris - Ecole des Hautes Etudes Commerciales)

Abstract

Each year, hundreds of own-label products appear on the shelves of major multiple retailers that "look" like successful brands. The close imitation of a national brand trade dress aims at creating a "halo of resemblance," on the basis of which consumers may make inferences and attributions of similarity of use, of content, if not of origin. In most countries, imitation is condemned if there is a risk of confusion. But the final decision as to whether or not such a risk exists is left up to the judge. The purpose of this paper is to test for the presence of confusion by means of a tachistoscopic experiment. It aims at bringing empirical data into the courtroom. Hence, it relies on the operational definition used by courts to evaluate the likelihood of confusion. This research demonstrates that the risk of confusion is real. It also shows how this confusion operates. Finally, it raises some important ethical issues in the face of the fact that many copied brands hesitate to engage lawsuits.

Suggested Citation

  • Jean-Noël Kapferer, 1995. "Brand Confusion: Empirical Study of a Legal Concept," Post-Print hal-00784110, HAL.
    • Handle: RePEc:hal:journl:hal-00784110
    DOI: 10.1002/mar.4220120607
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    Citations

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    Cited by:

    1. Kelting, Katie & Berry, Christopher & van Horen, Femke, 2019. "The presence of copycat private labels in a product set increases consumers' choice ease when shopping with an abstract mindset," Journal of Business Research, Elsevier, vol. 99(C), pages 264-274.
    2. Swami, Viren & Chamorro-Premuzic, Tomas & Furnham, Adrian, 2009. "Faking it: Personality and individual difference predictors of willingness to buy counterfeit goods," Journal of Behavioral and Experimental Economics (formerly The Journal of Socio-Economics), Elsevier, vol. 38(5), pages 820-825, October.
    3. Szymanowski, M.G., 2009. "Consumption-based learning about brand quality : Essays on how private labels share and borrow reputation," Other publications TiSEM b12825d8-5e21-4437-adda-b, Tilburg University, School of Economics and Management.
    4. Scott, Clifford D., 2013. "Trademark Strategy in the Internet Age: Customer Hijacking and the Doctrine of Initial Interest Confusion," Journal of Retailing, Elsevier, vol. 89(2), pages 176-189.
    5. Malek Simon Grimm & Ralf Wagner, 2021. "Intra-brand image confusion: effects of assortment width on brand image perception," Journal of Brand Management, Palgrave Macmillan, vol. 28(4), pages 446-463, July.
    6. Daniel Baier & Ines Daniel & Sarah Frost & Robert Naundorf, 2012. "Image data analysis and classification in marketing," Advances in Data Analysis and Classification, Springer;German Classification Society - Gesellschaft für Klassifikation (GfKl);Japanese Classification Society (JCS);Classification and Data Analysis Group of the Italian Statistical Society (CLADAG);International Federation of Classification Societies (IFCS), vol. 6(4), pages 253-276, December.
    7. Henderson, Geraldine R. & Iacobucci, Dawn & Calder, Bobby J., 1998. "Brand diagnostics: Mapping branding effects using consumer associative networks," European Journal of Operational Research, Elsevier, vol. 111(2), pages 306-327, December.
    8. Van Horen, Femke & Pieters, Rik, 2013. "Preference reversal for copycat brands: Uncertainty makes imitation feel good," Journal of Economic Psychology, Elsevier, vol. 37(C), pages 54-64.
    9. Komal Nagar & Vishab Pratap Singh, 2021. "Modelling the Effects of Materialism, Ethics and Variety-Seeking Behaviour on Counterfeit Consumption of Young Consumers," Global Business Review, International Management Institute, vol. 22(4), pages 996-1009, August.
    10. Jie Chen & Lefa Teng & Yonghai Liao, 2018. "Counterfeit Luxuries: Does Moral Reasoning Strategy Influence Consumers’ Pursuit of Counterfeits?," Journal of Business Ethics, Springer, vol. 151(1), pages 249-264, August.
    11. van Horen, Femke & Pieters, Rik, 2012. "Consumer evaluation of copycat brands: The effect of imitation type," International Journal of Research in Marketing, Elsevier, vol. 29(3), pages 246-255.
    12. Rainer Olbrich & Michael Hundt & Hans Christian Jansen, 2016. "Proliferation of Private Labels in Food Retailing: A Literature Overview," International Journal of Marketing Studies, Canadian Center of Science and Education, vol. 8(6), pages 63-76, December.
    13. Miceli, Gaetano Nino & Pieters, Rik, 2010. "Looking more or less alike: Determinants of perceived visual similarity between copycat and leading brands," Journal of Business Research, Elsevier, vol. 63(11), pages 1121-1128, November.
    14. Andrzej Falkowski & Justyna Olszewska & Joanna Ulatowska, 2015. "Are look-alikes confusing? The application of the DRM paradigm to test consumer confusion in counterfeit cases," Marketing Letters, Springer, vol. 26(4), pages 461-471, December.
    15. S. Umit Kucuk, 2016. "Exploring the Legality of Consumer Anti-branding Activities in the Digital Age," Journal of Business Ethics, Springer, vol. 139(1), pages 77-93, November.
    16. Ezgi Oguz & Jamie Marsden, 2023. "Defending Against Copycat Packaging: The Role of Design from a Consumer’s Perspective," Athens Journal of Business & Economics, Athens Institute for Education and Research (ATINER), vol. 9(1), pages 73-90, January.
    17. Ralf Buckley, 2023. "Sector-Scale Proliferation of CSR Quality Label Programs via Mimicry: The Rotkäppchen Effect," Sustainability, MDPI, vol. 15(14), pages 1-11, July.
    18. Bian, Xuemei & Wang, Kai-Yu & Smith, Andrew & Yannopoulou, Natalia, 2016. "New insights into unethical counterfeit consumption," Journal of Business Research, Elsevier, vol. 69(10), pages 4249-4258.
    19. Minjae Sun & Joonseok Kim, 2023. "Sustainability and Brand Equity: The Moderating Role of Brand Color and Brand Gender," Sustainability, MDPI, vol. 15(11), pages 1-19, May.

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    Keywords

    Brand Confusion; Legal Concept;

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