When your trademark infringement litigation calls for highly qualified likelihood of confusion consultants, take advantage of the extraordinary expertise of Keegan & Donato Consulting.
We are 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?
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.
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.
Confusion is reviewed by the courts in a variety of ways:
- Strength of the senior user’s mark
- Similarity of the parties’ respective marks
- Similarity of the goods or services
- Defendant’s Intent
- Evidence of Confusion
- Customer Intelligence
- Quality of the defendant’s product or services
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.
Our Survey Methodology
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.
We can provide you with technical and strategic advice; help you analyze the economic, financial and/or technical complexities of your case; help you determine suitable deposition questions to ask; help you prepare a testifying expert for deposition and trial; or critique the potential weaknesses in an adversary’s survey evidence in a rebuttal report.
Of course, consumer surveys must be well-designed and scientifically sound or they may be given little weight by the court or partially or completed excluded.
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), for example, the court deemed the plaintiff’s surveys inadmissible after determining that they were unscientific and poorly constructed. The court also rejected the survey expert as unqualified “to design a survey or to interpret survey results” [see 45 F.Supp.3d 1167-1170].
If you are looking for consultants with a combination of strategic and analytical skills who can provide a likelihood of confusion analysis to strengthen your case, Keegan & Donato Consulting can help. Contact us at (914) 967-9421 to learn more about our wide range of services.