A NERA team provided survey evidence in support of Duracell, which obtained a favorable summary judgment as the defendant in a recent trademark suit. What A Smoke (WAS) filed a trademark suit against Duracell in 2019 alleging the battery company knowingly infringed on its trademark for the “Optimum” brand name.

Senior Managing Director Sarah Butler and Director Healey Whitsett conducted two reverse confusion surveys that established there is no likelihood of confusion between WAS’ Optimum vaporizers and Duracell’s Optimum batteries. The survey respondents were asked a series of questions to determine whether there was any likelihood of confusion between Duracell Optimum Batteries and WAS Optimum Vaporizers after being shown images of the latter. Namely, the reverse confusion surveys ascertained whether consumers of vaping devices believed WAS’ Optimum vaporizers are made or put out by, associated or affiliated with, or received permission from Duracell to use the Optimum mark. The reverse confusion surveys showed only one out of 605 respondents mentioned Duracell when asked this series of questions.

Duracell’s motion for summary judgment was granted after it was determined that WAS’ Optimum vaporizers and Duracell’s Optimum batteries have nothing in common aside from the word “Optimum.” The court cited the results of NERA’s surveys in granting this motion.