A big question you might be wondering about is, “Can consumer surveys prove likelihood of confusion in trademark cases?” The answer is yes, but only when done right. They can provide clear, empirical evidence of what buyers actually think.

Consumer surveys can answer whether consumers believe two brands come from the same source or are somehow related. Courts and the TTAB often view well-designed surveys as powerful proof of confusion in trademark cases because they turn consumer perception into data the court can evaluate.

What a Likelihood of Confusion Survey Actually Proves

A likelihood of confusion survey measures whether relevant consumers, who are the people who buy or influence purchases in the category, could mistake one party’s mark for another’s, or think the companies are connected. In such a situation, the output is net confusion, not raw awareness. When the design of the survey mirrors real shopping conditions and the analysis is clean, then the evidence can support (or undermine) an infringement claim.

Formats Judges Know and When To Go Beyond Them

Two formats show up often.

• Eveready works well when the senior mark is widely known.
• Squirt/lineup presents brands side-by-side when consumers encounter them together (same shelf, page, or screen).

It’s true that these are useful starting points, but they are not a one-size-fits-all solution and can actually fall seriously short.

The right choice depends on how buyers actually meet the marks in your case. Sometimes, the most reliable path is a custom design that recreates the real buying moment.

Why Customization Matters

Marketplace reality wins. If most purchases happen on mobile product pages, a sterile, side-by-side lineup may miss key cues. If awareness of the senior mark is modest, a classic Eveready may under-measure confusion.

Keegan & Donato is known for customized surveys that fit the facts by:

• Tailoring the stimuli
• Screening
• Precise questions that reflect how consumers truly shop your category.

That tight “fit” makes results more persuasive and more defensible.

What Courts Look For

Judges focus on method.

• Does the survey use the right universe of consumers?
• Is the sample representative?
• Were respondents randomized into cells and shown appropriate controls to strip out noise?
• Are the questions neutral and easy to follow?

Reports should document every step of the entire process, such as:

• Who was surveyed
• How fielding was monitored
• What was excluded (speeders/straight-liners)
• How the net results were calculated

Keegan & Donato builds to that litigation standard and stands behind the work with declarations, expert reports, and testimony.

When Surveys Help Most

• You’re moving for or opposing a preliminary injunction and need credible evidence fast.
• Competing brands share similar names, packaging, or page layouts, and you need to quantify risk.
• The other side filed a survey, and you must rebut its universe, controls, or stimuli.
  In each situation, a focused, litigation-ready survey can raise (or lower) the court’s confidence in a likelihood of confusion claim.

How Keegan & Donato Approach Likelihood of Confusion Surveys

At Keegan and Donato, our team starts by clarifying the legal theory and the buying context. Then we focus on customizing to reflect reality. We screen the correct buyer universe, use representative panels, randomize exposure, and balance controls.

Finally, we explain the results in plain English and connect them to your claims and defenses.

Our team has designed, executed, and critiqued hundreds of trademark surveys admitted in federal and state courts, in arbitration, and before the TTAB.

When it comes to the question, “Can consumer surveys prove the likelihood of confusion in trademark cases?” The answer is yes. But, only if the methods fit the marketplace and the legal question. That’s where customized work makes the difference. Need a trademark or marketing survey for litigation? Our experts are ready to help – contact us online or call us at (914) 967-9421.