It is important when evaluating likelihood of consumer confusion between brands in the same or similar markets to assess the similarity of the marks at issue. Similarity is often tested and measured through consumer survey research. But, why is similarity important and how is it determined?
One of the main functions of a trademark is to prevent competitors from using similar marks to confuse consumers into thinking that they are buying products or services from a trusted, known source when, in fact, they are not. Trademark law allows a trademark holder to prevent a competitor from using a confusingly similar mark.
To prove trademark infringement, the owner of a trademark must show that consumers are likely to be confused between his or her trademark and an allegedly similar mark.
Keegan & Donato Consulting provides trademark survey consulting to law firms throughout the nation and their clients who are involved in infringement litigation. Our methodologically sound surveys and expert analysis can help you develop a powerful case or rebuttal strategy.
Likelihood of Confusion
The more similarity there is between two trademarks, the more likely there will be confusion between the marks.
To determine whether consumers believe that the brands at issue are related, affiliated, connected, or that the goods or services originate from the same source, there are four main factors to consider: appearance, sound, meaning and commercial impression. Courts carefully weigh these and other factors before determining whether a likelihood of confusion exists.
- Appearance: If the marks are exactly the same in spelling, there is a greater chance that consumers may be confused if they assume that the goods and services emanate from the same source.
- Sound: If the marks have a slightly different spelling but are pronounced the same, there is a greater likelihood of confusion between them. For example, using the “Koka Kola” mark to sell beverages may cause consumers to confuse the products with the Coca-Cola® brand of beverages.
- Meaning: When marks have a similar meaning and the products or services they represent are similar, consumer confusion is possible. For example, using the “Applet” mark to sell computers may be off-limits because it is likely that consumers will confuse the computers with those manufactured by “Apple.”
- Commercial Impression: When a mark gives consumers the impression that it is sponsored by, endorsed by, or somehow affiliated with a different brand or its products, confusion could be likely. For example, using the “Sleekcraft” mark to sell high-speed boats may cause consumers to confuse the mark with that of “Skillcraft” boats.
Conducting a consumer research study is a common approach toward proving likelihood of confusion. Keegan & Donato Consulting will design a study to target relevant consumers in your client’s market and determine how these consumers perceive the brands.
A likelihood of confusion survey addresses the issue of consumer confusion from a scientific perspective, taking the factors described above into consideration and providing empirical data regarding the extent to which consumers believe that certain brands at issue emanate from the same source or are somehow related.
If you want to conduct a survey of your own to test trademark similarity or need a consumer research study to support or contest an allegation of infringement, take advantage of our extraordinary expertise by contacting Keegan & Donato Consulting at (914) 967-9421.