Measuring consumer uncertainty or confusion in trademark infringement litigation is easier when you take advantage of the expertise of Keegan & Donato Consulting. Hiring us will significantly impact whether the court deems your survey results admissible.
Keegan & Donato Consulting is a leader in designing and executing consumer survey research studies and collaborating on a wide range of marketing and complex commercial litigation issues. We have a combined 30+ years of experience in conducting consumer research studies in the context of IP disputes, and our services are available throughout the nation.
Measuring Consumer Confusion
One of the chief purposes of a trademark is to prevent consumer confusion. When marks are too similar, they may confuse consumers into purchasing unwanted brands, dilute or damage a brand’s reputation, or allow a competitor to benefit from the established reputation of another brand.
Trademark owners who claim infringement and unfair competition under the Lanham Act, 15 USC 1114(a)(1) are generally required to establish two elements: that the defendant used the registered mark in commerce; and that the use is likely to cause consumer confusion, or to cause mistake, or to deceive.
Courts may apply different factors when assessing the likelihood of confusion. Here are several of them:
- Strength of the senior trademark: The senior mark is the one that was first used in commerce or was registered first. The more distinctive it is, the more protected the mark will be.
- Similarity of goods or services: Is an everyday consumer likely to buy one product or service while believing it is different? The similarity of two brand names and the relatedness of their products or services is important. For example, Maternally Yours and Your Maternity Shop were found to be too similar.
- Similarity of the parties’ marks: This is one of the most critical factors, and the court will consider whether the marks look or sound too much alike. For example, the court found CRESCO and KRESSCO to be too similar.
- Market Competition: The similarity of marks will also be evaluated based on how consumers encounter them in the real world, such as how they are advertised and where they might be found in a store.
- Defendant’s intent: Deception involves intent, which can be hard to prove. If it’s clear that an infringing party intended to confuse consumers when choosing their mark, it may be enough to prove the likelihood of confusion.
- Buyer sophistication: This refers to the amount of care the consumer takes during the purchasing process: the less sophisticated the buyer, the more likely they are to be confused.
- Evidence of actual confusion: Direct evidence of actual confusion is proof that the products and marks are similar enough to create consumer confusion.
If you are interested in measuring consumer uncertainty, Keegan & Donato Consulting can provide the expertise you need to develop a powerful trademark infringement litigation strategy. Reach out to us at (914) 967-9421 to take advantage of our training, expertise, and data-gathering expertise.