The First Circuit includes Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
Which mark's purchasers are confused? Forward confusion occurs when consumers believe that the goods or services of a junior user come from, or are sponsored by, the senior mark holder. Reverse confusion occurs when the senior user's goods or services are mistaken for the junior user's goods or services. In other words, the consuming public is made to believe that the senior user is actually the infringer. This usually occurs because the junior user is larger and has saturated the market with advertising and publicity.
When does the confusion occur Initial interest confusion occurs when temporary confusion creates consumer interest in a good or service but any confusion is dispelled before an actual purchase is made. Initial interest confusion capitalizes on the goodwill associated with an another party's mark. As such, initial interest confusion can support a claim for trademark infringement. The most common type of confusion is point-of-purchase confusion. This confusion occurs at the time of purchase when a customer makes a purchase from one company believing it to be the good or service of another. Post-purchase confusion occurs when someone other than the purchaser sees the infringing good or service and is confused.
What is the basis for the confusion?The most classic type of confusion is source confusion in which the infringing mark confuses the consumer into believing that product or service comes from the wrong source. Source confusion is manifested if consumers make an unconscious judgment that the infringing product is associated with the source of the senior user's product. Sponsorship confusion is when the consumer is confused about whether one source has sponsored or approved the goods or services of another or whether there is some other affiliation, connection, or association between the two sources.
Ms. Harper has significant experience in providing evidence to prove, or disprove, likelihood of confusion in the First Circuit.
She has conducted hundreds of trademark and trade dress surveys. Ms. Harper ensures that she selects the correct universe and the most appropriate methodology. She uses state-of-the art survey tools, hosting platforms, and works with only the best-in-class sample companies.
If a survey is not appropriate, Ms. Harper is also adept at assessing confusion using the First Circuit's multi-factor test, using her 35+ years of experience in marketing.