Engaging trademark survey experts like Keegan & Donato Consulting when defending likelihood of confusion actions is an excellent decision. Our team offers consumer survey design expertise and can answer your questions about likelihood of confusion factors. No matter your budget or your needs, we can help you develop a robust case or rebuttal strategy.
Keegan & Donato Consulting is a specialty research consultancy in Rye, New York. We develop consumer surveys for plaintiffs and defendants across the nation. With more than 30 combined years of experience in conducting consumer research studies, principals Mark Keegan and Tony Donato have a range of skills and tools that can help you build a strong case.
We are members of the International Trademark Association (INTA), the American Association for Public Opinion Research (AAPOR), the American Marketing Association (AMA), and ESOMAR, the foremost global association for market, social, and opinion researchers.
What is Confusion?
Trademark owners who claim infringement and unfair competition under the Lanham Act are typically required to prove that the defendant used the registered mark in commerce and that using the mark is likely to confuse consumers, cause mistake, or deceive.
When marks are too much alike, the alleged infringing mark may confuse consumers into purchasing goods or services they don’t want, dilute or damage a brand’s reputation, or allow competitors to benefit from another brand’s established reputation. The more similar the marks, the greater the likelihood that confusion and infringement will occur.
The courts may apply different factors to assess likelihood of confusion, such as:
- Strength of the senior mark: The mark that was used or registered first is the senior mark. The more distinctive the senior mark is, the more protected it is.
- Relatedness of the products: This refers to whether an average consumer would purchase a product or service believing it is a different product or service.
- Similarity of the marks: One of the most important factors, the elements to be considered involve similarity in pronunciation, appearance, and meaning.
- Marketing channels used: The similarity of marks is also assessed based on how consumers encounter them in the market, such as how they are advertised and where in a store they might be found.
- Defendant’s intent in selecting the mark: Evidence that the infringing party chose their mark with the intent of confusing consumers may be enough to prove the likelihood of confusion.
- Buyer sophistication: This refers to the amount of care the consumer takes during the purchasing process. The less sophisticated the purchaser, the more likely they will be confused.
- Evidence of actual confusion: Evidence of actual confusion is proof that the products and marks are similar enough to create confusion among consumers.
Keegan & Donato Consulting designs custom trademark surveys to meet the needs of each case. This may involve developing unique designs to address specific issues that are important in your unique case and targeting specialized populations of respondents. These factors will also affect the time and difficulty of executing a study and its overall cost.
Engaging a trademark survey expert to defend your likelihood of confusion actions will help develop powerful evidence for your case. Get in touch with Keegan & Donato Consulting at (914) 967-9421 to learn more about our services.