To help you prove consumer confusion, Keegan & Donato Consulting offers a combination of strategic and analytical skills for conducting a likelihood of confusion survey, with analysis that will strengthen your case.
Located in Rye, New York, Keegan & Donato Consulting offers a wide range of services to plaintiff and defendant clients, including consultation on litigation strategy, consumer research studies, testimony in trademark and trade dress litigation, testimony at deposition and/or trial, expert reports, and rebuttal of opposing parties’ surveys when applicable.
With a combined 30-plus years of experience in conducting consumer research studies, as well as membership in the International Trademark Association (INTA), the American Marketing Association (AMA), the American Association for Public Opinion Research (AAPOR), and ESOMAR, the leading global association for market, social and opinion researchers, principals Mark Keegan and Tony Donato have wide-ranging skills and tools that can help you strengthen your case.
How to Identify Likelihood of Confusion
Trademark owners who claim infringement and unfair competition under the Lanham Act, 15 USC 1114(a)(1) are usually required to establish these two elements:
- that the defendant used the registered mark in commerce;
- that the use of the mark is likely to cause consumer confusion, or to cause mistake, or to deceive.
When marks are too similar, the allegedly infringing mark may confuse consumers into buying unwanted goods or services, dilute or damage a brand’s reputation, or allow competitors to benefit from another brand’s established reputation. The more similar the marks, the more likely it is that confusion and infringement will occur.
To ascertain whether consumers have been exposed to potential confusion, the courts will consider these and other factors:
Similarity of the goods or services: Are the goods or services similar enough that an everyday consumer would be likely to purchase one product or service in the belief that it is, in fact, a different one?
Similarity of the marks: The court will consider sight, sound and meaning. For example, Lutex and Lutexal were found to be too similar, as were Crescro and Kressco, and Mr. Clean and Mr. Rust.
Defendant’s intent: Did the defendant intend to deceive consumers? Deception involves intent, which can be extremely difficult to prove in practice.
Although courts often give evidence of actual consumer confusion substantial weight, it is not a requirement. The most persuasive evidence will often come from a consumer survey.
A likelihood of confusion survey from Keegan & Donato Consulting is a valuable litigation tool because it 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.
By asking relevant consumers to respond to certain stimuli and recording their answers, it is possible to measure their attitudes and behaviors, and understand how they perceive a contested mark.
It is this understanding of how consumers view the relationship between brands that forms the basis of a likelihood of confusion analysis.
If you are interested in conducting a likelihood of confusion survey for your IP litigation, consider Keegan & Donato Consulting. Call us at (914) 967-9421 to learn more about our capabilities.