If you are an attorney interested in litigation support related to likelihood of confusion factors, look no further than Keegan & Donato Consulting.
Keegan & Donato Consulting, located in Rye, New York, serves plaintiff and defendant clients from coast to coast, 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.
What is Confusion?
Trademark owners who claim infringement and unfair competition under the Lanhan 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 well-known reputation. The more similar the marks are, the more likely it is that confusion and infringement will occur.
The courts may apply different factors in order to assess the likelihood of confusion, including:
- 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.
Our Survey Best Practices
Keegan & Donato Consulting conducts methodologically sound consumer research studies and expert testimony that will meet the courts’ standards for design, execution, and analysis and can serve as powerful evidence in your case. Some of the industry best practices we build into our designs include:
- Appropriate universe selection and sampling frame;
- Inclusion of representative, qualified respondents;
- Use of procedures to minimize potential biases in data collection;
- Use of objective, non-leading questions;
- Use of procedures to reduce guessing among respondents; and
- Full analysis and reporting of survey data.
We employ both classic survey designs and innovative custom survey designs that are developed to suit each client’s unique needs.
Keegan & Donato Consulting offers consumer survey design expertise and can answer your questions about likelihood of confusion factors. No matter your budget or your needs, we can help you develop a powerful case or rebuttal strategy. Contact us today at (914) 967-9421 to learn more about our services.