Wondering how to prove the likelihood of confusion in your trademark infringement case? The Keegan & Donato Consulting team can help. We are experts in conducting surveys to measure likelihood of confusion.
Located in Rye, New York, Keegan & Donato Consulting offers a variety 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.
Principals Mark Keegan and Tony Donato have more than 25 years of combined experience in the consumer research field as well as extensive testimony experience. Their credentials include:
- Juris Doctor from Brooklyn Law School (Keegan)
- Bachelor of Arts in History from Pace University (Keegan)
- Member of the New York and Connecticut Bar Associations (Keegan)
- Master of Public Policy from Georgetown University (Donato)
- Bachelor of Arts in Politics from Ursinus College (Donato)
- Co-author of peer-reviewed journal articles (Donato)
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.
Value of Consumer Surveys
Evidence of actual confusion is not required; however, courts often give such evidence substantial weight. In addition to gathering testimony from confused customers, the most persuasive evidence often comes 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, often when no other evidence is available.
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.
Keegan & Donato Consulting adheres to survey design, execution and presentation best practices. Our consumer surveys direct objective, non-leading questions to an appropriate universe of consumers. We have procedures in place to minimize potential biases in data collection, and our services include a full analysis and reporting of survey data.
If you would like to learn more about how to prove likelihood of confusion, Keegan & Donato Consulting offers a combination of strategic and analytical skills to 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 services.