One of the main functions of a trademark is to prevent consumer confusion. Keegan & Donato Consulting regularly assists clients to answer the most frequently asked questions on the topic and explain how consumer surveys can help you protect your intellectual property rights.
Keegan & Donato Consulting is a specialty research consultancy and a leading firm in the field of trademark litigation. Mark Keegan and Tony Donato offer 25-plus years of experience and a combination of strategic and analytical skills that equip them to provide expert research, analysis, affidavits and reports on behalf of plaintiffs and defendants across the nation in regard to likelihood of confusion, strength of mark, secondary meaning, and other Lanham Act claims.
The firm provides a complete suite of services, including:
- State-of-the-art consumer survey design, implementation, and presentation
- Expert analysis and report preparation
- Expert witness testimony on consumer survey, marketing and economic issues
- Critique and rebuttal of reportsfrom opposing experts
- Damages and forensic economic analyses
- Advice on deposition and trial questioning of opposing experts
We can work within your budget to deliver the survey evidence you need, and have been engaged by leading IP litigators such as Schepisi & McLaughlin, PA in New Jersey, Day Pitney LLP in New York City, Riemer & Braunstein LLP in Boston, Girard Gibbs LLP in San Francisco, and attorneys throughout the nation.
Frequently Asked Questions (FAQs) about Confusion
What is confusion?
When they are too similar, marks may confuse (or deceive) 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.
Are there different types of confusion?
Yes, there are several different types of confusion, including:
- Actual confusion: It is possible for products with similar names or packaging to be confusingly similar. For example, it would be likely for a consumer to confuse a cleaning product called “Pine-Soll” in the grocery store with the national brand, Pine-Sol®.
- Confusion over the source: Consumers may know that two products are not the same but may mistakenly believe that the products come from the same source. For example, a consumer who is familiar with the Microsoft computer giant could assume that Microsoft put out a product called “Micro Software.”
- Confusion over types of goods: A consumer may believe that one type of goods is authorized, sponsored or approved by a different company. For example, it would not be unreasonable for a consumer to assume that a baseball cap with a L.A. Dodgers™ logo was authorized by the baseball team.
Could a consumer survey help your case?
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.
Courts often regard consumer surveys as powerful evidence of likelihood of confusion in trademark infringement litigation and TTAB proceedings.
To be considered relevant and reliable, however, surveys must be designed according to scientific and accepted research principles. Keegan & Donato Consulting measures likelihood of confusion through classic survey designs and by crafting innovative custom surveys to meet our clients’ needs.
Each trademark infringement case is unique. Read more articles on trademark confusion or get in touch with contact Keegan & Donato Consulting at (914) 967-9421 to take advantage of our training, expertise, and data-gathering capabilities.