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District Circuits

Eighth Circuit Likelihood of Confusion Factors

Eighth Circuit Likelihood of Confusion Factors

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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 Eighth Circuit

The Eighth Circuit includes the following jurisdictions:

  • Eastern District of Arkansas
  • Western District of Arkansas
  • Northern District of Iowa
  • Southern District of Iowa
  • District of Minnesota
  • Eastern District of Missouri
  • Western District of Missouri
  • District of Nebraska
  • District of North Dakota
  • District of South Dakota

The Eighth Circuit considers the Six Squirtco Factors when considering likelihood of confusion cases:

  1. The strength of the trademark
  2. The similarity between the mark at issue and the alleged infringer’s mark
  3. The degree to which the products compete with each other
  4. The alleged infringer’s intent in using the mark
  5. Incidents of actual confusion
  6. Whether the degree of purchaser care can eliminate the likelihood of confusion which would otherwise exist

Lovely Skin, Inc. v. Ishtar Skin Care Products, LLC, 745 F.3d 877, 887-89 (8th Cir. 2014); SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir. 1980).

Rhonda Harper Expert Witness

Rhonda HarperWithin the Eighth Circuit, Rhonda Harper has been retained for three cases filed within: District of Minnesota, District of Nebraska, and the Western District of Missouri.

Retained by 100+ law firms since 2005, Ms. Harper is courtroom proven. She has been engaged to provide 65+ surveys, 80+ reports, 30+ rebuttals, 45+ depositions, and serve in 20+ trials. She has provided services to both Plaintiffs (60%) and Defendants (40%) across trademark and trade dress, packaging, merchandising, defamation, licensing, breach of contract, advertising, and commercial reasonableness. She has provided services in virtually every Circuit as well as JAMS and TTAB.

Ms. Harper is routinely retained 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.

Ms. Harper's 30+ year career includes serving as a Fortune 100 Chief Marketing Officer. Having authored two books, she is a former Adjunct MBA Marketing Professor.

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