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District Circuits

Second Circuit Likelihood of Confusion Factors

Second Circuit Likelihood of Confusion Factors

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Each of the 13 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 Second Circuit exercises federal jurisdiction in:

The Second Circuit considers the Eight Polaroid Factors in likelihood of confusion cases:

  1. Strength of the trademark
  2. Similarity of marks
  3. Proximity of the products and their competitiveness with one another
  4. Evidence that the senior user may bridge the gap by developing a product for sale in the market of the alleged infringer’s product
  5. Evidence of actual consumer confusion
  6. Evidence that the imitative mark was adopted in bad faith
  7. Respective quality of the products
  8. Sophistication of consumers in the relevant market

Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir. 1961).

Rhonda Harper


Rhonda Harper MBA, Expert Witness

In the Second Circuit, Rhonda Harper has been retained in six cases filed in the:

  • New York State Supreme Court Manhattan
  • Western District of New York
  • Southern District of New York

She has also been retained for a case at JAMS New York City.

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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