If you are a trademark attorney who is interested in conducting surveys to measure likelihood of confusion, Keegan & Donato Consulting has extensive experience, training, and data-gathering expertise, and will collaborate with you to understand the fundamental issues of your case.
Keegan & Donato Consulting is a specialty research consultancy and a leading firm in the field of trademark litigation. We provide expert research, analysis, affidavits and reports on behalf of plaintiffs and defendants throughout the nation.
With a combined 25-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.
Factors for Identifying Likelihood of Confusion
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 are, the more likely it is that confusion and infringement will occur.
To figure out whether consumers are 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 to 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.
Why Hire an Expert?
When confronted with unscientific and poorly constructed surveys, judicial opinions can be harsh and the evidence may be given little weight by the court or partially or completed excluded.
In Black & Decker Corp. v. Positec USA Inc., 1:11-cv-5426, Dist. Court, N.D. Illinois, Eastern Division (2017), for example, flawed survey evidence caused the Court to toss out an earlier jury verdict and $53.9 million award and order a new trial.
The Court concluded that the likelihood of confusion survey proffered by the Plaintiff had been “so informally designed and conducted that it fails key tests of professionalism and reliability” and should have been excluded from trial.
“Even if … the survey was not the sole evidence on likelihood of confusion in the trial record, it was the linchpin of Plaintiffs’ case on likelihood of confusion— an issue that was hotly contested at trial. Given that Plaintiffs presented no evidence that any consumers were actually confused about the origin of Defendants’ goods, there is a high probability that [the expert’s] flawed testimony unfairly influenced the jury’s verdict… and admission of the survey and [the expert’s] testimony about the survey was fundamentally unfair to Defendants.”
For reasons like these, it is crucial to hire qualified survey experts, such as Keegan & Donato Consulting. Our methodologically sound consumer research studies and expert testimony will meet the courts’ standards for design, execution and analysis and can serve as powerful evidence in your case.
The Keegan & Donato Consulting team are experts in conducting surveys to measure likelihood of confusion. We can help you develop a powerful strategy with a reliable, methodologically sound consumer research study. Get in touch with us today at (914) 967-9421.