Get in touch with the survey experts at Keegan & Donato Consulting to find out how to prove consumer confusion. We have 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.
Identifying 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 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.
Should You Hire a Survey Expert?
Surveys are highly susceptible to criticism, and you can expect the courts to scrutinize them for methodological flaws. Sample selection issues, interviewer bias, and suggestive wording often cause judges to attribute little weight to a survey or deem some or all of the results inadmissible.
For this reason, we highly recommend hiring qualified survey experts. Keegan & Donato Consulting’s methodologically sound consumer research studies and expert testimony will meet the courts’ standards for design, execution, and analysis and serve as powerful evidence in your case.
If you want to know how to prove consumer confusion, Keegan & Donato Consulting offers a combination of strategic and analytical skills and can provide a likelihood of confusion analysis that will strengthen your case. Contact us at (914) 967-9421 to learn more about our wide range of affordable services.