Confusion between brands that compete in the same or similar markets can sometimes be inevitable. If you are involved in a trademark dispute that requires a confusion analysis, Keegan & Donato Consulting has the expertise to gather data on the beliefs and attitudes of consumers toward your client’s brand.
Consumer research studies can be used to convince a court that consumer confusion between trademarks exists or does not exist. The studies provide direct evidence about consumer perceptions that cannot be matched by expert testimony alone. They can also elicit complex information about consumer perceptions that visual comparisons do not provide.
Our methodologically sound surveys have been accepted as evidence in matters involving confusion, secondary meaning, strength of mark, acquired distinctiveness, consumer perception, and a variety of Lanham Act issues in the context of trademark and trade-dress litigation in state and federal courts, at arbitration, and to the TTAB and NAD.
With Mr. Keegan’s experience in devising complex case strategies involving business, marketing, economics, and financial issues on behalf of his clients, and Mr. Donato’s experience in research, strategy, survey design and execution, and data analysis, our clients benefit from our unique blend of strategic and analytical skills.
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 at issue originate from the same source or are somehow related. It is this understanding of how consumers view the relationship between brands that forms the basis of a likelihood of confusion analysis.
Although survey evidence is not essential, courts tend to hold surveys in high regard and consider them to be the most direct method of showing likelihood of confusion in trademark infringement cases. Surveys can be particularly influential when other evidence is absent.
In a number of Lanham Act decisions, courts have commented on the absence of consumer survey evidence. For example, in Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F.Supp. 583 (D.N.J.1985), the court noted that, “failure of a trademark owner to run a survey to support its claims of brand significance and/or likelihood of confusion, where it has the financial means of doing so, may give rise to the inference that the contents of the survey would be unfavorable, and may result in the court denying relief.”
Judicial opinions can be harsh, however, when confronted with unscientific and poorly constructed surveys. In the case of Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the Court completely disregarded the plaintiff’s surveys and rejected the survey expert as unqualified “to design a survey or to interpret survey results.”
Consequently, it is crucial to hire qualified survey experts, like Keegan & Donato Consulting, who are experienced in designing and executing consumer surveys that will stand up to judicial scrutiny.
Whether you need a trademark confusion analysis to support your case strategy or a different type of consumer research study, Keegan & Donato Consulting has the expertise to quickly deliver intelligence within a wide range of budgets. Call us today at (914) 967-9421 to learn more about our services.