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Applied Marketing Science's Likelihood of Confusion Survey is Found to be Persuasive in Supporting Motion for Summary Judgment and Permanent Injunction

In 2012, fifty-five parishes of The Episcopal Church in South Carolina disassociated from the national Episcopal Church organization over disagreements with various policies of the national church. This led to a dispute over ownership of church property and the use of various registered trademarks. Although originally a state court matter between South Carolina parties related to property ownership, the national church became a party when the disassociated parishes moved to cancel the trademark registration for “The Episcopal Church” on the grounds that it was generic.

Applied Marketing Science, Inc. Chairman Robert Klein conducted a likelihood of confusion survey on behalf of the original South Carolina plaintiffs (the parishes that remained associated with the national organization), that measured the extent to which marks used by the dissociated parishes ("The Protestant Episcopal Church in the Diocese of South Carolina" and "The Episcopal Diocese of South Carolina") would be likely to cause confusion. The survey showed that 41% of Episcopalians and 18% of South Carolina residents overall associate "The Protestant Episcopal Church in the Diocese of South Carolina" with the Plaintiff’s “The Episcopal Church” mark. Similarly, results also showed that 64% of Episcopalians, and 24% of South Carolina residents overall, associate "The Episcopal Diocese of South Carolina" with the Plaintiff’s “The Episcopal Church” mark. In addition, Klein provided rebuttal testimony to a survey offered by the dissociated parishes that purported to show that “The Episcopal Church” was a generic term.

In response, the Defendants argued that Klein the survey should be excluded as inadmissible under Daubert. The court was unpersuaded by the criticisms and found that Klein's survey was both admissible and relevant to confusion. The court cited the Klein survey results as “striking” and that they far exceeded percentages that the circuit previously held to be "clear evidence" of confusion. The court then went on to disallow the Defendant expert’s genericism survey citing many of the flaws identified by Klein’s rebuttal report. The U.S. District Court Judge Richard Mark Gergel went on to grant summary judgement on the plaintiff’s claims and issued a permanent injunction preventing the dissociated parishes from using any of the marks of the national church. (The Right Reverend Charles G von Rosenberg, et al., and The Episcopal Church v. The Reverend Mark J. Lawrence, et al., 2:13-cv-00587, District of SC, Charleston Division)

Applied Marketing Science (AMS) provides market research, consulting and expert insight for innovation and litigation. Our experts are experienced in conducting consumer surveys related to consumer perceptions, behaviors and have a strong understanding of the legal standards for survey research in trademark, deceptive advertising, class action, and many other types of litigation. For more information about AMS Litigation Support services please contact Jason Och at joch@ams-inc.com.

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Likelihood of Confusion

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