Surveys can be valuable tools in Lanham Act litigation because they provide insight into possible consumer confusion over contested trademarks, often when no other scientific evidence is available.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation.
With more than 25 years of combined experience, proven survey methodologies, and deep operational insight, principals Mark Keegan and Tony Donato provide expert research, expert reports, and testimony on behalf of plaintiffs and defendants in support of trademark infringement litigation.
What is Confusion?
One of the primary purposes of a trademark is to prevent consumer confusion. When marks are too similar, they may confuse consumers into buying unwanted brands, damage or dilute a brand’s reputation, or enable competitors to benefit from another brand’s established reputation.
Trademarks can be similar in appearance, sound, and meaning. The greater the similarity between two marks, the greater the chance that consumers are likely to be confused by the second mark, and the greater the chances of infringement taking place.
Consumers may recognize that two products are not the same, but mistakenly believe they come from the same source or are somehow related. For example, someone with basic computer industry knowledge may assume that a product called “Micro Software” was created by the computer giant, Microsoft.
Even when it is clear that two products are not made by the same company, a consumer may believe that a product was authorized, sponsored or approved by the original company. For example, it would be reasonable for a consumer to assume that a baseball cap with a Cleveland Indians™ logo, although manufactured by a different company, was authorized by the team.
In many instances, the most persuasive evidence of confusion comes from a consumer survey.
Under the Lanhan Act, 15 USC 1114(a)(1), trademark owners who claim infringement and unfair competition are generally required to establish two elements: (1) that the defendant used the registered mark in commerce; and (2) that the use is likely to cause consumer confusion, or to cause mistake, or to deceive.
A likelihood of confusion survey addresses the issue of consumer confusion from a scientific perspective, providing empirical data regarding the extent to which consumers believe that certain brands at issue emanate from the same source or are somehow related.
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.
Judicial opinions can be harsh, however, when confronted with unscientific and poorly constructed surveys. In the case of Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the Court completely disregarded the plaintiff’s surveys and rejected the survey expert as unqualified “to design a survey or to interpret survey results.”
Consequently, it is crucial to hire qualified survey experts. Methodologically sound consumer research studies and expert testimony from Keegan & Donato Consulting will meet the courts’ standards for design, execution and analysis and can serve as powerful evidence in your case.
When you need a likelihood of confusion survey to strengthen your Lanham Act trademark litigation, get in touch with the experts at Keegan & Donato Consulting at (914) 967-9421 to find out how we can help.