White paper: Consumer confusion audits and performance-based regulation

In 2018, Professors Lauren Willis (Law, Loyola Law School)Manoj Hastak (Marketing, American University) and I (Jen King) submitted a report to the Australian Securities and Investment Commission (ASIC) to assist the ASIC with considering the feasibility of confusion audits and caps as a form of performance-based regulation. Under Professor Willis’ direction, we wrote this analysis reviewing the U.S. experience with litigation and administrative proceedings aimed at deterring firms from creating or profiting from consumer confusion. This report describes the consumer confusion constructs that are relevant to claims brought under U.S. consumer protection and fair competition law; identifies the rates of consumer confusion that have been found by U.S. courts to violate these laws; analyzes the strengths and weaknesses of the various types of evidence used to demonstrate actionable consumer confusion with respect to claims brought under these laws; and recounts the qualifications U.S. courts require of experts who perform social-scientific research used to demonstrate the presence or absence of actionable consumer confusion in legal proceedings.

At the request of other researchers who are conducting similar work and wish to cite this report, we’ve released it publicly as a white paper under CIS’s imprint. As per our agreement with ASIC, we note that readers of this report may copy it without the copyright owners’ permission only if the copyright owners and the Australian Securities and Investments Commission are acknowledged in the copy and the copy is used for educational, not-for-profit purposes.

Citations of this report should be to:

Lauren Willis, Manoj Hastak, and Jennifer King. Customer Confusing Audits: Lessons from the Use of Consumer Confusion Evidence in the United States. Report submitted to the Australian Securities and Investments Commission, 2018. Center for Internet and Society Public White Paper, September 2023.