Measuring consumer confusion or uncertainty in trademark infringement cases is crucial for gathering insight into actual consumer perceptions. Keegan & Donato Consulting will help you design a reliable, methodologically sound consumer study to support your claim.
Keegan & Donato Consulting designs and executes consumer survey research studies and collaborates on a wide range of marketing and complex commercial litigation issues. We offer 30+ years of combined experience in conducting consumer research studies in the context of intellectual property disputes and provide services across the nation, such as:
- Likelihood of Confusion Analysis & Surveys
- Secondary Meaning Analysis & Surveys
- Strength of Mark Analysis & Surveys
- Lanham Act Analysis & Surveys
- Trade Dress Analysis & Surveys
- False & Deceptive Advertising Surveys
- Consumer Perception Analysis & Surveys
- Consumer Understanding Studies
- Marketing, damages, and forensic economic analyses
- Expert Witness Testimony
- Critique / rebuttal of opposing experts’ studies and reports
- Advice on questioning of opposing experts at deposition and trial
Confusion and the Value of Surveys
When marks are too similar, an allegedly infringing mark may confuse consumers into purchasing unwanted goods or services, damage or dilute a brand’s reputation, or allow competitors to benefit from a brand’s well-known reputation.
Trademarks can be similar in appearance, pronunciation, or meaning. Similarity is determined by whether the relevant consuming public is likely to be confused by the junior mark. The more similarity, the greater the chances of confusion between the marks, and the greater the chances that infringement will occur.
Although courts often give substantial weight to evidence of actual consumer confusion, it is not a requirement. The most persuasive evidence typically comes from a consumer survey.
A likelihood of confusion survey from Keegan & Donato Consulting is a valuable tool for litigation because it addresses consumer confusion from a scientific perspective. It provides empirical data about the extent to which consumers believe that certain brands at issue come from the same source or are somehow related.
By asking the appropriate consumers to respond to specific stimuli and recording their answers, we can measure their attitudes and behaviors and understand how they perceive a contested mark. This understanding of how consumers view the relationship between brands forms the basis of a likelihood of confusion analysis.
It can be hazardous to proceed in a trademark infringement matter without survey evidence designed and executed by trained independent experts using sound methodologies.
In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), for example, there is an extensive discussion wherein the Court affirms the District Court’s exclusion of the defendant’s survey evidence after concluding that it “had too many methodological flaws to be of any probative value…and failed to support a likelihood of confusion.”
Keegan & Donato Consulting offers both strategic and analytical expertise that can answer your questions about measuring consumer uncertainty and help you develop a robust trademark infringement case. Contact us at (914) 967-9421 to learn more about our wide range of affordable services.