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District Circuits

First Circuit Likelihood of Confusion Factors

First 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 First Circuit includes the following jurisdictions:

  • Maine
  • Massachusetts
  • New Hampshire
  • Puerto Rico
  • Rhode Island

The First Circuit uses the Eight Pignons Factors when considering likelihood of confusion cases:

  1. The similarity of marks
  2. The similarity of the goods (or, in a service mark case, the services)
  3. The relationship between the parties’ channels of trade
  4. The juxtaposition of their advertising
  5. The classes of prospective purchasers
  6. The evidence of action confusion
  7. The defendant’s intent in adopting its allegedly infringing mark
  8. The strength of the plaintiff’s mark

Rhonda Harper MBA, Expert Witness

In the First Circuit, Ms. Rhonda Harper has been retained as an Expert Witness in several cases.

Retained by more than 140 law firms, Ms. Harper is courtroom proven in virtually every circuit along with JAMS and TTAB.  Her 30+ year career includes serving as a Fortune 100 chief marketing officer and an adjunct marketing professor. In addition to providing litigation consulting and research in the areas of business, licensing, marketing, advertising, in-store merchandising, and strategy, 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 the methodological pitfalls that can introduce bias or systematic error.

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