Trademark infringement is determined by the “likelihood of confusion” test which examines whether consumers are likely to be confused between products identified with competing marks. Actual confusion can be difficult to prove and, while not required by the Lanham Act, may be given substantial weight by courts.
Likelihood of confusion is the most common trademark litigation issue that clients contact Keegan & Donato Consulting about. 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 emanate from the same source or are somehow related.
Keegan & Donato Consulting has conducted and critiqued hundreds of likelihood of confusion studies across industries ranging from high-end audio products to designer apparel and everything in between. Our nationwide trademark litigation services include these and other areas:
- State-of-the-art survey design and execution
- Full-service data gathering and reporting capabilities
- Damages analysis and forensic economic analysis
- Pilot studies and exploratory research
- Collaboration on complex commercial litigation issues
- Critique and rebuttal of opposing experts’ studies and reports
- Advice on questioning of opposing experts in deposition and at trial
- Expert witness testimony on consumer survey, marketing & economic issues
Likelihood of Confusion
When analyzing likelihood of confusion, Federal courts typically apply some or all of these factors to guide their reasoning:
- Strength of the plaintiff’s mark. The stronger the mark, the more likely the confusion.
- Similarity between the competing marks, including appearance, sound, connotation and commercial impression. The greater the similarity, the greater the likelihood of confusion.
- Relationship between the goods being marketed. The more similarity between the goods and services, the more likely the confusion.
- Quality of the defendant’s goods or services. When the defendant’s goods or services are inferior, consumer confusion could cause more harm.
- Likelihood that the defendant will expand into the plaintiff’s product area and create confusion.
- The defendant’s intent in adopting the mark. A defendant who intends to cause confusion will generally succeed.
- Degree of care exercised by the consumer. Sophisticated buyers are more likely to be discriminating and less likely to be easily confused as to similar marks.
- Evidence of actual confusion. Proof that the average consumer is confused is powerful evidence of infringement.
Evidence of actual confusion often takes the form of a consumer survey that demonstrates that individuals saw the two marks in the marketplace and believed they were somehow related.
If you think your case would benefit from knowing whether there is actual confusion over your client’s trademark or a likelihood of confusion, get in touch with Keegan & Donato Consulting at (914) 967-9421 to find out how a consumer research study could strengthen your case.