To succeed in a trademark infringement case, a plaintiff must prove that the defendant’s use of a registered mark is likely to cause consumer confusion or to deceive. Demonstrating actual confusion is not required, but a likelihood of confusion survey from Keegan & Donato Consulting can be a valuable litigation tool.
Keegan & Donato Consulting, a specialty research consultancy, is located in Rye, New York. We provide a complete suite of services, including consulting on litigation strategy for both plaintiff and defendant clients across the nation, consumer research studies, expert reports, testimony during litigation, testimony at deposition and/or trial, and rebuttal of opposing parties’ surveys when applicable.
Principals Mark Keegan and Tony Donato have more than 25 years of cumulative experience in the field of consumer research and develop consumer surveys on many topics within the fields of trademark and trade dress.
One of the foremost purposes of a trademark is to prevent consumer confusion. When marks are too similar, they may confuse consumers into purchasing unwanted brands, may dilute or damage a brand’s reputation, or may allow a competing brand to benefit from the established reputation of another brand.
Trademark owners who claim infringement and unfair competition under the Lanhan Act, 15 USC 1114(a)(1) are generally required to establish two elements: that the defendant used the registered mark in commerce; and that the use is likely to cause consumer confusion, or to cause mistake, or to deceive.
The courts may apply different factors in order to assess the likelihood of confusion, such as:
- Strength of the senior mark: The senior trademark is the one that was used or registered first. The more distinctive the mark is, the more protected it is.
- Relatedness of the goods or services: This refers to whether an average consumer would purchase one product or service in the belief that it is a different product or service.
- Similarity of the parties’ marks: One of the most important factors, the elements to be considered involve similarity in appearance, sound and meaning.
- Competition in the marketplace: The similarity of marks is also assessed based on how consumers encounter them in the marketplace, such as how they are advertised and where in a store they might be found.
- Defendant’s intent: Evidence that the infringing party intentionally chose their mark to cause confusion may be enough to prove the likelihood of confusion.
- Buyer sophistication: This refers to the amount of care taken by the consumer during the purchasing process. The less sophisticated the purchaser, the more likely the confusion.
- Evidence of actual confusion: Evidence of actual confusion is proof that the products and marks are similar enough to create confusion among consumers.
If you are looking for consultants with a combination of strategic and analytical skills who can assist you with demonstrating actual consumer confusion that will strengthen your case, Keegan & Donato Consulting can help. Contact us at (914) 967-9421 to learn more about our wide range of services.