Keegan & Donato Consulting offers consumer survey design expertise and can answer your questions about likelihood of confusion survey formats. No matter your budget or your needs, we can help you develop a powerful case or rebuttal strategy.
The principals of Keegan & Donato Consulting – Mark Keegan and Tony Donato – have extensive strategic and analytical skills and 30+ years of combined expertise in designing, executing and critiquing consumer research studies in the context of litigation.
What We Do for Our Valued Clients
- Design, execute and present results of:
- trademark litigation surveys, including likelihood of confusion, secondary meaning, trade dress, strength of mark, genericness, fame, and others;
- false and deceptive advertising, consumer perception, and other types of marketing surveys;
- Critique and rebuttal of trademark and marketing surveys;
- Damages and forensic economic analyses;
- Expert witness testimony on consumer survey, marketing and economic issues.
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.
Likelihood of Confusion Survey Formats
In general, there are two commonly accepted formats for likelihood of confusion surveys:
Eveready format – This format is most effective in cases that involve popular brands, since the audience typically remembers those brands. Survey respondents are shown a single trademark or product and asked a series of questions to determine whether they associate one brand’s products or services with the other.
Squirt format – Sometimes referred to as “the Lineup format,” this format shows respondents the trademarks or products of both litigants in a side-by-side comparison. It is intended to replicate marketplace conditions by showing a group of products that may be encountered in proximity in the marketplace. This format is used most often when the brands are not famous or easily recognizable.
Deciding which format to use requires knowledge about branding, awareness, distribution, and consumer behavior. Keegan & Donato Consulting has the experience required in consumer studies to measure likelihood of confusion in trademark and trade dress infringement matters. We have worked as experts on behalf of plaintiffs and defendants in support of their litigation in state and federal courts, the Trademark Trial and Appeal Board (TTAB), the NAB, at arbitration, and at other specialty venues.
As you look for trademark survey companies that can help strengthen your case strategy, reach out to Keegan & Donato Consulting for clarification on likelihood of confusion survey formats. Call us at (914) 967-9421. We work on a fixed rate or hourly basis depending on the needs of each client.