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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

Rhonda HarperIn the First Circuit, Rhonda Harper has been retained as an Expert Witness in cases filed in District Court, D. Massachusetts.

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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