Likelihood of confusion is a legal standard in trademark law that determines whether or not trademark infringement has occurred. It is a common litigation issue. Consumer research surveys can help determine how consumers view the relationship between brands and assist you in formulating a strong case strategy.
Similarity and Confusion
One of the main purposes of a trademark is to prevent consumer confusion. When too similar to an established mark, an infringing mark may confuse consumers into purchasing unwanted brands, damage or dilute a brand’s reputation, or allow competitors to benefit from the established reputation of another brand.
Trademarks can be similar in appearance, sound, and meaning. Similarity is determined by whether the relevant consuming public is likely to be confused by the junior mark. The greater the similarity between two marks, the greater the chances there will be confusion between them, and the greater the chances of infringement taking place.
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.
Courts often regard consumer surveys as powerful evidence of likelihood of confusion in trademark infringement litigation and TTAB proceedings. To be considered relevant and reliable, however, surveys must be designed according to scientific and accepted research principles.
Keegan & Donato Consulting has conducted and critiqued hundreds of likelihood of confusion studies across a wide range of industries that have been admitted into evidence in federal and state courts, at arbitration, and to the Trademark Trial and Appeal Board (TTAB). Principals Mark Keegan and Anthony Donato also have extensive testimony experience.
Trademark Survey Methodology
Consumer surveys often play a pivotal role in successfully resolving trademark disputes. However, surveys can be discounted and given little weight by the court, primarily because of poor design and/or a lack of objectivity.
To avoid these pitfalls and satisfy judicial and adversarial scrutiny, Keegan & Donato Consulting follows 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 approach survey design on a case-by-case basis and work closely with clients to understand the key issues driving their cases, working to maximize the value of consumer survey evidence to their overall case strategy.
We are a specialty research consultancy and are members of the International Trademark Association (INTA), ESOMAR, the leading global association for market, social and opinion researchers, and the American Marketing Association (AMA). Mr. Keegan is also an AMA-designated Professional Certified Marketer.
When you require a likelihood of confusion survey or a study to resolve another trademark law standard, such as strength of mark or secondary meaning, get in touch with the experts at Keegan & Donato Consulting at (914) 967-9421 to find out how we can help.