A well-executed likelihood of confusion survey can play a significant role in your trademark infringement litigation by helping you determine how consumers interpret a contested mark.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation.
With a combined 25 years of proven survey methodologies, deep operational insight, and broad industry experience, 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.
Trademark cases can be complex and are frequently decided based on the quality of the evidence presented. Our firm has designed and critiqued hundreds of likelihood of confusion studies to ascertain whether consumers are confused by a party’s use of a contested mark. We also provide expert witness testimony on consumer survey, marketing and economic issues.
What is 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.
Under the Lanham 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.
There are different types of confusion, including:
- Actual confusion: In the case of counterfeit goods, it can be difficult even for experts to distinguish between a genuine product and its imitation. However, products with similar names or packaging may also be confusingly similar. For example, a cleaning product called “Pine-Soll” would likely cause a consumer to mistake it for the national brand, Pine-Sol®.
- Confusion over the source: 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 knowledge of the computer industry may assume that a product called “Micro Software” was created by the computer giant, Microsoft.
- Confusion over types of goods: 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, a baseball cap with a N.Y. Yankees™ logo is obviously not a baseball team. But it would be reasonable for a consumer to assume that the team authorized the cap.
Evidence of actual confusion is not required; however, courts often give such evidence substantial weight. In many instances, the most persuasive evidence comes from a consumer survey.
Value of Consumer Surveys
Surveys are valuable tools in trademark litigation because they provide insight into actual consumer perceptions, often when no other scientific 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.
However, to be considered relevant and reliable, consumer surveys must be conducted by trained independent experts using sound methodologies, or the court may find them to be of limited value.
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 your infringement case calls for a likelihood of confusion survey, we invite you to get in touch with Keegan & Donato Consulting at (914) 967-9421 to find out how we can help.