Today’s marketplace is a clutter of marketing messages and imagery. With an ever-increasing number of brands competing for share of mind among consumers, confusion between brands competing in the same or similar markets can sometimes be inevitable. In such instances, brand owners and their counsel often find themselves asking: Are consumers confused between my brand and my competitor’s brand?
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 and everything in between. A likelihood of confusion survey addresses the issue of consumer confusion from a scientific perspective, providing empirical data regarding the extent to which consumers believe that certain brands at issue emanate from the same source or are somehow related. It is this understanding of how consumers view the relationship between brands which forms the basis of a likelihood of confusion analysis.
Because the circumstances of each case are unique, we approach survey design on a case-by-case basis. We work closely with our clients to understand the key issues driving the case, and work to maximize the value of consumer survey evidence to the overall case strategy. We measure likelihood of confusion through employing both classic survey designs and adapting and developing innovative custom survey designs to suit our clients’ needs. We have designed likelihood of confusion studies for cases in federal court, state court, the Trademark Trial and Appeal Board (TTAB), arbitration hearings, and other specialty venues.