Litigants often use consumer surveys to convince a court that consumer confusion exists (or does not exist) between trademarks when infringement is alleged. When you need a consumer study or marketing research survey to support your case, take advantage of the incomparable expertise of Keegan & Donato Consulting.
The principals of Keegan & Donato Consulting – Mark Keegan and Tony Donato – have over 25 years of combined expertise in designing, executing and critiquing consumer research studies in the context of litigation, and possess an unusual mix of strategic and analytical skills.
Mr. Keegan is a member of the New York and Connecticut Bar Associations and has formulated complex litigation case strategies on behalf of his clients and worked as a marketing strategist with top brands. He is also an AMA-designated Professional Certified Marketer.
Mr. Donato has a Master of Public Policy from Georgetown University and an extensive background in marketing, intellectual property, and consumer behavior cases covering trademark, copyright, patent, best efforts, advertising, business damages, consumer surveys, and business ethics.
The firm utilizes an industry-leading online survey software platform to design and execute state-of-the-art surveys that feature:
- Ability to target specific populations
- Balanced, representative panels
- Hundreds of question types and formats
- Advanced question rotation and randomization
- Customizable complex skip and display logic
- Real-time survey results
- Advanced quota building
- Advanced screening capabilities
- Audio, video and image capabilities
- Graphic design capabilities
Can a Survey Make a Difference in Your Case?
Trademark litigation surveys provide direct evidence about consumer perceptions that can be difficult to accomplish by means of visual comparisons and expert testimony alone.
An expert can help determine 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.
It’s important, however, to employ knowledgeable experts. The court may deem an overly broad survey inadmissible when it fails to address the key issues in a case, even if based on an accepted methodology, or give it little weight.
In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), there is a lengthy discussion about why the Court determined that survey evidence submitted by the defendant in this trademark infringement and unfair competition case, “had too many methodological flaws to be of any probative value.”
And, although the Lanham Act does not require litigants to introduce consumer surveys in trademark disputes, a number of Lanham Act decisions have also noted the absence of such evidence.
In one example, the court noted in Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F.Supp. 583 (D.N.J.1985), that “failure of a trademark owner to run a survey to support its claims of brand significance and/or likelihood of confusion, where it has the financial means of doing so, may give rise to the inference that the contents of the survey would be unfavorable, and may result in the court denying relief.”
Don’t overlook the use of surveys to strengthen your trademark infringement case. Keegan & Donato Consulting can help you develop a powerful litigation strategy. Get in touch with us today at (914) 967-9421 to find out more about our services.