Do you need a likelihood of confusion survey for upcoming litigation? Keegan & Donato Consulting has conducted and critiqued hundreds of surveys across industries ranging from designer apparel to high-end audio products and everything in between.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced firms in trademark litigation. Our state-of-the-art survey designs employ classic and innovative custom survey designs to suit our clients’ needs.
As consulting experts, Mr. Keegan and Mr. Donato can:
- provide technical and strategic advice;
- analyze the economic, financial, and technical complexities of your case;
- determine suitable deposition questions to ask;
- prepare a testifying expert for deposition and trial;
- objectively evaluate the work of other experts;
- critique potential weaknesses in an adversary’s survey evidence, and write a rebuttal report.
About Confusion and Trademarks
A primary purpose of a trademark is to prevent consumer confusion. When too similar, marks 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 will likely be confused by the junior mark. The more similarity, the greater the chances of confusion between the marks and the greater the chances of infringement.
Courts will consider these and other factors to determine if consumers have been confused by a mark or product::
- Strength of the senior mark: The senior mark is the one that was used or registered first. The more distinctive it is, the more protected it will be.
- Similarity of the goods or services: Are the goods or services similar enough that an average consumer might purchase one product or service, believing that it is a different product or service?
- Similarity of the marks: The court will consider sight, sound, and meaning. For example, Crescro and Kressco were found to be too similar, as were Lutex and Lutexal, and Mr. Clean and Mr. Rust.
- Competition in the marketplace: The similarity of marks is also assessed based on how they are encountered in the marketplace by consumers, including how they are advertised and where in a store they might be found.
- Intent of defendant: Did the defendant set out to deceive consumers? Deception involves intent. Evidence that the defendant intentionally chose their mark to cause confusion may be enough to prove likelihood of confusion.
- Buyer sophistication: How much care was taken by the consumer during the purchasing process? The less sophisticated the purchaser, the more likely there is to be confusion.
- Evidence of actual confusion: Evidence of actual confusion proves that the products and marks are similar enough to create confusion among consumers.
Hire the Experts
When you need a likelihood of confusion survey for your trademark infringement case, proving consumer confusion will be easier with the expertise of Keegan & Donato Consulting. Call us at (914) 967-9421 to take advantage of our expertise and data-gathering expertise. Hiring us will significantly impact whether the court deems your survey results admissible.