When you need help overcoming a trademark registration rejection from the United States Patent and Trademark Office based on likelihood of confusion, Keegan & Donato Consulting can help.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation.
With 25+ years of combined experience, proven survey methodologies, and deep operational insight, principals Mark Keegan and Tony Donato provide expert research, expert reports, and testimony on behalf of plaintiffs and defendants in support of trademark infringement litigation.
The firm has designed and critiqued hundreds of likelihood of confusion studies to ascertain whether consumers are confused by a party’s use of a contested mark. We also provide expert witness testimony on consumer survey, marketing and economic issues.
What is Confusion?
One of the main purposes of a trademark is to prevent consumer confusion. 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 established reputation. The more similar the marks are, the more likely it is for confusion and infringement to occur.
The courts may apply different factors in order to assess the likelihood of confusion, including:
- Strength of the senior mark: The senior trademark is the one that was used or registered first. The more distinctive the mark, the more protected it is.
- Relatedness of the goods or services: This refers to whether an average consumer would purchase one product or service in the belief that it is a different product or service.
- Similarity of the parties’ marks: One of the most important factors, the elements to be considered involve similarity in appearance, sound and meaning.
- Competition in the marketplace: The similarity of marks is also assessed based on how consumers encounter them in the marketplace, such as how they are advertised and where in a store they might be found.
- Defendant’s intent: Evidence that the infringing party intentionally chose their mark to cause confusion may be enough to prove the likelihood of confusion.
- Buyer sophistication: This refers to the amount of care taken by the consumer during the purchasing process. The less sophisticated the purchaser, the more likely the confusion.
- Evidence of actual confusion: Evidence of actual confusion is proof that the products and marks are similar enough to create confusion among consumers.
Value of a Consumer Survey
In addition to gathering testimony from confused customers, the most persuasive evidence of the likelihood of confusion often comes from a consumer survey.
A likelihood of confusion survey from Keegan & Donato Consulting is a valuable litigation tool because it addresses the issue of consumer confusion from a scientific perspective, often when no other evidence is available.
By asking relevant consumers to respond to certain stimuli and recording their answers, it is possible to measure their attitudes and behaviors, and understand how they perceive a contested mark.
If you are battling the rejection of a trademark registration based on likelihood of confusion and need a consumer survey designed to strengthen your case, Keegan & Donato Consulting can help. Contact us today at (914) 967-9421 to explore our wide range of services.