214-244-4608

District Circuits

Fifth Circuit Likelihood of Confusion Factors

Fifth Circuit Likelihood of Confusion Factors

Get the expertise you need plus the experience you want.

Each of the thirteen federal courts of appeal have their own test for evaluating whether a likelihood of confusion exists between two trademarks. Although the tests are not identical, most of them are substantially similar and use many of the same factors. And the factors are non-exclusive.

The Fifth Circuit includes the following jurisdictions:

  • Eastern District of Louisiana
  • Middle District of Louisiana
  • Western District of Louisiana
  • Northern District of Mississippi
  • Southern District of Mississippi
  • Eastern District of Texas
  • Northern District of Texas
  • Southern District of Texas
  • Western District of Texas

The Fifth Circuit uses Eight Factors when considering likelihood of confusion cases:

  1. Strength of the plaintiff’s mark
  2. Similarity of design between the marks
  3. Similarity of the products
  4. Identity of retail outlets and purchasers
  5. Similarity of advertising media used
  6. The defendant’s intent
  7. Actual confusion
  8. Degree of care exercised by potential purchasers

Am. Rice Inc. v. Producers Rice Mill, Inc., 518 F.3d 321, 329 (5th Cir. 2008).


Rhonda Harper Expert WitnessWith 30 years of experience, trademark survey expert Ms. Harper has been retained for 28 cases filed in the Fifth Circuit.

  • Ms. Harper has been retained for cases filed in the:
    Northern District of Texas Dallas Division
  • Northern District of Texas Abilene Division
  • County Court of Dallas Texas
  • Judicial District Court Dallas County
  • District Court Dallas County Texas 101st Judicial District
  • District Court of Dallas County
  • Harris County Texas 234th Judicial District
  • District Court of Dallas County Texas 68th Judicial District25
  • Eastern District of Texas
  • Eastern Division of Texas Tyler Division
  • Eastern District of Texas Sherman Division
  • Southern District of Texas Houston Division
  • Southern District of Mississippi

Beginning her career in consumer package goods, Ms. Harper is a data-driven marketer who has conducted and/or overseen thousands of research studies. Ms. Harper's experience includes leading the research departments for both Sam's Club and VF Corporation VFI - both of which spent millions of dollars every year on custom research. In addition, for eight year Ms. Harper owned and led RTM&J, a boutique management, marketing, and research firm.

Ms. Harper has been retained by more than 100 law firms to formulate expert surveys, conduct rebuttal critiques, or construct rebuttal surveys to show the potential difference in results with properly designed and executed surveys. She has extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error.

Consumer opinions, behavior, and potential confusion are key issues in Lanham Act litigation and TTAB proceedings. Ms. Harper develops surveys and analyze these issues in relation to trademark or trade dress infringement, dilution, secondary meaning, and genericness or descriptiveness. She uses only the most advanced online survey platform methods: representative panels, various question types and formats, real-time results, advanced rotation/randomization, quota building, skip and display logic, audio/video/image capabilities, and advanced screening and analytics capabilities.

Ms. Harper has completed scores of rebuttal reports and surveys.

Thorough review and response to an opposing expert’s survey work is a critical component of a successful rebuttal strategy. Ms. Harper provides guidance on how to approach the opposing counsel’s evidence in order to make a strong, effective rebuttal, including crafting effective critiques or constructing rebuttal surveys.

Ms. Harper evaluates the quality and reliability of opposing counsel's survey evidence. She provides assessments of the degree to which surveys conform to generally-accepted principles of proper survey research. She have extensive experience and a deep understanding of survey design, sampling, question construction, data analysis, and methodological pitfalls that introduce bias or systematic error.

Professional Memberships