Explore how a likelihood of confusion expert like Keegan & Donato Consulting could bolster your trademark infringement case by presenting fact-based evidence in support of your position.
Keegan & Donato Consulting, located in Rye, New York, is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients in the context of intellectual property disputes. Principals Mark Keegan and Tony Donato have more than 25 years of cumulative experience in the field of consumer research.
We develop surveys for plaintiffs and defendants across the United States on issues related to likelihood of confusion, strength of mark, secondary meaning, acquired distinctiveness, dilution, genericness, false advertising, and many other topics within the fields of trademark and trade dress.
What is Confusion?
When too similar, marks may confuse consumers into buying unwanted good or services, may dilute or damage a brand’s reputation, or may allow competitors to benefit from the established reputation of another brand. The more similarity between two marks, the more likely confusion may occur, and the more likely infringement is possible.
There are a variety of issues to consider when analyzing whether a consumer could be confused into purchasing one item, believing he was purchasing a different item. There are also different types of confusion. They include:
- Actual confusion: In the case of counterfeit goods, even experts may be unable to distinguish between a genuine product and its imitation. But it’s also possible for products with similar names or packaging to be confusingly similar. For example, a cleaning product called “Pine-Soll” in the supermarket would likely cause a consumer to confuse it with the national brand, Pine-Sol®.
- Confusion over the source: Consumers may know that two products are not the same, but they may mistakenly believe that the two products come from the same source. For example, a consumer who is familiar with the Microsoft computer giant may assume that they put out a product called “Micro Software.”
- Confusion over types of goods: It may be clear that two products are not put out by the same company. A consumer, however, may believe that one product is authorized, sponsored or approved by the original company. For example, a baseball cap with a L.A. Dodgers™ logo is clearly not a baseball team. But a consumer might assume that the baseball team sponsored or authorized the cap.
Why the Advice of an Expert is Valuable?
Expert advice can be critical for several reasons, such as in making the most of fact discovery, framing discovery requests, and identifying issues to investigate in depositions.
An expert can help establish whether competing marks are likely to confuse consumers; whether a descriptive mark has acquired secondary meaning; whether or not a mark is famous; and whether one brand’s mark is likely to cause dilution to a competing mark.
It’s important, however, for consumer surveys to be well-designed and scientifically sound, or they may be given little weight by the court or partially or completed excluded.
For example, in Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the court deemed the plaintiff’s surveys inadmissible after determining them to be unscientific and poorly constructed. The court also rejected the survey expert as unqualified “to design a survey or to interpret survey results” [see 45 F.Supp.3d 1167-1170].
If you are seeking a highly qualified likelihood of confusion expert who can help you develop a powerful strategy for your trademark litigation, consider Keegan & Donato Consulting. Get in touch with us at (914) 967-9421 to learn more about our wide range of services.