ABA Section of Antitrust Law Consumer Protection Conference
Consumer Protection Conference
Georgetown University Law Center
Friday, June 19, 2009
11:45 a.m. - 12:45 p.m.
Use, Misuse and Disregard of Evidence of Actual Confusion in Federal and State Regulatory Proceedings
Evidence of actual consumer deception, whether shown by victims' testimony or properly conducted consumer surveys, is highly probative, and often required, in private litigation. Regulatory (and self-regulatory) agencies, by contrast, enjoy more freedom to conclude that a claim or practice is deceptive, even without consumer evidence. Are regulators using extrinsic evidence appropriately? Do their activities prove that common sense and experience are a good substitute for ad-specific evidence of deception, or should regulators be required to offer extrinsic evidence more often?