Likelihood of Confusion Surveys

Our trademark survey experts design, conduct, and critique likelihood of confusion surveys for attorneys. We have worked on hundreds of these studies, in industries from designer apparel to high-end audio.

A well-designed survey provides empirical evidence of whether relevant consumers believe products come from the same source, or that the businesses are affiliated, sponsored, or approved by one another.

Similarity of Appearance

Marks can look alike in their lettering, logos, colors, or overall design. Consumers often see a mark for only a moment, on a shelf, a screen, or a package, so a shared look can lead them to link two products.

Similarity of Sound

Marks that are pronounced alike can be confused even when they are spelled differently. Sound matters most where people hear a name instead of seeing it, such as a friend’s recommendation, a radio ad, or a voice search.

Similarity of Meaning

Two marks can bring the same idea to mind even when they look and sound different. When both point to the same concept, consumers may assume the products come from one company.

Identify the issues

We start with the marks, the products, and the claims, and decide what the survey needs to answer.

Design for the case

Most studies use a test-versus-control experiment, with the design adjusted to the facts.

Fit the venue

Surveys are built to suit federal and state courts, the TTAB, arbitration, and other specialty venues.

Publishing

Our client was a book publisher selling directly to consumers and into the educational market. The defendants sold books through retail booksellers under a brand similar to the plaintiff’s registered marks.

We surveyed hundreds of likely purchasers nationwide. A majority believed the products came from the same company, were affiliated with the plaintiff, or were sponsored or approved by it. After subtracting the external control, net confusion was material and above the level usually considered meaningful.

Toys

The plaintiffs said the defendants’ marks were confusingly similar to theirs, and that some of the terms were phonetic equivalents of the plaintiffs’ mark. Our client was on the defense side.

We surveyed several hundred likely purchasers nationwide. Net confusion, measured against both the external control and the average of the internal controls, was well below the level usually treated as evidence of confusion.

Construction

Our client alleged infringement of its trade dress on a novel construction product.

We surveyed more than a thousand respondents in the defendant’s urban market area. A majority of those who saw the trade dress believed the products came from the same company, were affiliated, or were sponsored or approved by the plaintiff. Net confusion after the external control was material. We repeated the study for a second allegedly infringing trade dress and got similar results.

How much will a survey cost?

Every study is built around the needs of the case, so the cost depends on the design.