Trademark attorneys in Seattle who require litigation support to bolster their case strategies will benefit from the extraordinary expertise of Keegan & Donato Consulting.
The vast experience of Keegan & Donato Consulting includes conducting consumer surveys to test a wide variety of Lanham Act claims, such as likelihood of confusion, strength of mark, secondary meaning, acquired distinctiveness, trade dress, and others, false and deceptive advertising, consumer perception, and expert witness testimony on consumer survey, marketing and economic issues.
Principals Mark Keegan and Tony Donato offer more than 25 years of combined experience and education in consumer-based survey research and data analysis in the context of intellectual property disputes, and follow a solid methodological foundation in survey design, execution and presentation.
Our services include these and other areas:
- State-of-the-art survey design and execution
- Full-service data gathering and reporting capabilities
- Damages analysis and forensic economic analysis
- Pilot studies and exploratory research
- Collaboration on complex commercial litigation issues
- Advice on questioning of opposing experts in deposition and at trial
- Expert witness testimony on consumer survey, marketing & economic issues
- Critique and rebuttal of opposing experts’ studies and reports
The Value of Survey Evidence
Surveys can be used to test a wide variety of Lanham Act claims. An expert can help establish whether or not competing marks are likely to confuse consumers; whether or not a descriptive mark has acquired secondary meaning; whether or not a mark is famous; and whether or not one brand’s mark is likely to cause dilution to a competing mark. In many instances, the most persuasive evidence comes from a consumer research study.
While survey evidence is not required in order to prevail on a claim of trademark infringement, courts often give such evidence substantial weight However, surveys must be well-designed and scientifically sound, or they may be given little weight by the court or partially or completed excluded.
In Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 569-70 (Dist. Court S.D.N.Y; 2007), for example, the Court excluded the evidence and testimony of all three of the plaintiff’s likelihood of confusion and dilution survey experts and two of the defendant’s three survey experts on the basis that the surveys were unreliable, plagued by significant methodological flaws, and that “any probative value was substantially outweighed by the danger of unfair prejudice and misleading the jury.”
In First Data Merchant Services Corp. v. SecurityMetrics, Inc., No. RDB–12–2568, 2014 WL 6871581 (D. Md. Dec. 3, 2014), the defendant’s survey expert’s report, opinions and testimony were excluded by the Court from the false advertising portion of the case due to the expert’s failure to use a control to test for consumer confusion (a “significant flaw”), and “several other troubling aspects” of the survey’s methodology.
If you are a trademark attorney who needs litigation support for a Seattle, Washington case, take advantage of the extraordinary expertise of Keegan & Donato Consulting. Please contact us at (914) 967-9421 to find out how we can help. We can deliver intelligence quickly and within a wide range of budgets.