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The importance of survey evidence to establish secondary meaning and likelihood of confusion

In Milk Street Cafe, Inc. vs. CPK Media, LLC, the plaintiffs claimed that their “Milk Street Cafe” trademark had acquired secondary meaning and that CPK’s use of the “Christopher Kimball’s Milk Street” mark was likely to cause confusion. U.S. District Judge Denise J. Casper entered judgement for defendant CPK Media after finding the “Milk Street Cafe” trademark had not acquired secondary meaning. Judge Casper also concluded that Milk Street Cafe failed to establish that CPK Media’s use of the “Christopher Kimball’s Milk Street” mark would lead to consumer confusion.

In balancing several factors to analyze both secondary meaning and likelihood of confusion, Judge Casper cited survey evidence, or a lack thereof, in the opinion.

Regarding secondary meaning, Judge Casper stated that “direct evidence, such as customer surveys or testimony, although not required, is considered highly probative as to whether a mark has acquired secondary meaning.” Milk Street Cafe relied upon expert testimony based only on circumstantial evidence (i.e., no survey). CPK Media, on the other hand, retained AMS survey expert Brian Sowers and introduced survey evidence showing that the Milk Street Cafe mark had not acquired secondary meaning. The Court cited the results of CPK’s survey as the basis for the ruling, and explained that the circumstantial evidence put forth by Milk Street Cafe was insufficient to establish secondary meaning.

Similarly, Milk Street Cafe did not introduce survey evidence to establish likelihood of confusion. Instead, the plaintiffs relied upon the opinion of an expert who, without a survey, simply stated that there was a likelihood of confusion between the two marks. CPK Media retained AMS rebuttal expert, Robert L. Klein, who opined that Milk Street Cafe’s expert did not provide a sufficient factual basis for concluding that a likelihood of confusion existed in this case. The Court agreed, concluding that Milk Street Cafe failed to demonstrate a likelihood of consumer confusion.

In this case at least, it appears that without a survey the Court believed there was insufficient evidentiary support for plaintiffs to establish secondary meaning or likelihood of confusion.

If you would like to learn more about this case, you can contact trademark infringement survey expert Brian Sowers at (781) 250-6313.

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