The use of well-designed surveys in your trademark litigation can provide direct scientific evidence of the extent of customer confusion about the plaintiff’s and defendant’s marks, brands, or products.
Keegan & Donato Consulting provides a complete suite of services, including assisting with litigation strategy for plaintiff and defendant clients, consumer research surveys, expert reports, testimony in trademark/trade-dress litigation, testimony at deposition or trial, and rebuttal of opposing parties’ surveys when applicable.
The firm is a specialty research consultancy. We are members of ESOMAR, the leading global association for market, social and opinion researchers, the International Trademark Association (INTA), and the American Marketing Association (AMA). Mr. Keegan is an AMA-designated Professional Certified Marketer.
One of the main purposes of a trademark is to protect consumers from being confused. When marks are too similar, they may confuse customers into purchasing unwanted brands, damage a brand’s reputation, or allow a competitor to benefit from the established reputation of another brand.
Trademark owners who claim infringement and unfair competition under the Lanham Act are typically required to establish two fundamentals: 1) the defendant used the registered mark in commerce, and 2) the use was intended to cause consumer confusion or deceive.
Courts may apply a range of different factors to assess the likelihood of confusion, such as:
- Strength of the senior mark: The senior trademark is the one that was registered or used first. The more distinctive the mark, the more protected it is.
- Relatedness of the goods or services: This refers to the likelihood that an average consumer would purchase one product or service believing that it is actually a different product or service.
- Similarity of the parties’ marks: The more similarity between the marks in appearance, sound, or meaning, the more likely there will be customer confusion.
- Competition in the marketplace: Another factor involves how consumers encounter marks in the marketplace, e.g., where in a store they are found and how they are advertised.
- Defendant’s intent: Evidence that the infringing party chose their mark intentionally to cause confusion can often be sufficient to prove the likelihood of confusion.
- Buyer sophistication: This alludes to the care taken by the customer during the purchasing process. The less sophisticated the buyer, 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.
The use of customer confusion surveys in trademark litigation is easier with the expertise of Keegan & Donato Consulting. Hiring us will have a significant impact on whether the court deems your survey results admissible. Call us at (914) 967-9421 to learn more about our training, expertise, and data-gathering expertise.