Scientific Consumer Surveys for Trademark Litigation: Understanding and Addressing Likelihood of Confusion Across Industries

Likelihood of confusion is the most common trademark litigation issue that clients contact us about. We have conducted and critiqued hundreds of likelihood of confusion studies across industries ranging from designer apparel to high-end audio products.

A likelihood of confusion survey survey provides scientific, empirical data to determine whether consumers perceive brands as related or sharing a common source. This consumer insight forms the foundation of a likelihood of confusion analysis, supporting attorneys with robust evidence for trademark litigation.

Because the circumstances of each case are unique, we approach survey design on a case-by-case basis.

Common factors causing trademark likelihood of confusion include:

Marks can be confusing when they look too similar, especially if small differences don’t stand out. Similar elements like fonts, designs, or key features can lead consumers to think the marks are from the same source. Since people often remember marks in a general way, clear visual differences are important to avoid confusion.

Marks can be confusingly similar in sound when their pronunciation is alike, even if spelled differently. Shared syllables, rhythm, or phonetic elements can lead consumers to associate them with the same source. Since consumers often rely on how a mark sounds, distinct pronunciations are essential to avoid confusion, especially in situations like word-of-mouth recommendations or advertisements.

Marks can be confusingly similar in meaning when they convey the same idea, concept, or impression, even if they differ in appearance or sound. Consumers may associate marks with the same source if their meanings are closely related. Ensuring distinct conceptual identities is crucial to avoid confusion, especially in cases where brands evoke similar themes or ideas.

We collaborate closely with clients to identify the key issues driving their case and strategically enhance the value and impact of consumer survey evidence.

We address the likelihood of confusion using both classic and customized survey designs. Our surveys are tailored for federal and state courts, the TTAB, arbitration, and other specialty venues.

Do you have a case that involves likelihood of confusion?

Would your case benefit from knowing how consumers perceive your client’s mark in comparison to similar brands?
Call us to find out how a consumer research study can strengthen your case.
Litigation Surveys & Survey Rebuttals to Help Drive Your Case Strategy Forward

Areas of Expertise

Likelihood of confusion

We use an experimental design (test vs. control) approach to deliver robust, statistically reliable evidence regarding likelihood of confusion.

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Strength of Mark

Survey evidence is a useful tool in proving (or disproving) the strength of a contested mark. Our tailored approach ensures that the most appropriate method is selected for your case.

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Secondary Meaning

Has your client’s mark acquired secondary meaning among consumers? Our survey evidence will provide the answer.

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Acquired distinctiveness

From product design to color, our survey evidence will help you determine how trade dress impacts consumers and your case.

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Lanham Act claims

We have extensive experience conducting surveys to test a wide variety of Lanham Act claims, including likelihood of confusion, secondary meaning, trade dress, and others.

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Consumer perception

Survey evidence can provide crucial information regarding how consumers perceive marks, product designs, colors, websites, and other stimuli.

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Consumer understanding

Our surveys provide thorough insights into how consumers process and understand marketing messages, labeling claims, disclaimers, and other communications.

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Rebuttal work

We have extensive experience rebutting surveys submitted by opposing experts covering a wide range of issues.

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