When your case strategy calls for trademark dilution surveys, Keegan & Donato Consulting offers the expertise and data-gathering capabilities you need.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced firms in the field of intellectual property litigation. We utilize classic survey designs as well as innovative custom designs to meet the needs of our clients.
We can work within your budget to deliver the survey evidence you need, and have been engaged by leading IP litigators such as Fox Rothschild LLP in New Jersey and Philadelphia, Arnold & Porter LLP in San Francisco, Duane Morris LLP in New York, and attorneys throughout the nation.
About Trademark Dilution
Dilution of trademarks occurs when a third party’s unauthorized use of a famous trademark weakens the distinctiveness of the trademark or damages its reputation. If the infringement is found to have been intentional, the Lanham Act provides for additional remedies.
Dilution by blurring occurs when a famous mark becomes identified with more than one type of product, such as might happen if consumers encountered “Rolls Royce” toothpaste or “Starbucks” handbags.
Dilution by tarnishment occurs when a famous mark is harmed by an association with a low quality or unsavory product, such as using the children’s game “Candyland” for the name of an adult website.
Proving dilution, whether by blurring or tarnishment, can be challenging, but consumer surveys can be used to establish such proof. The first step is to determine whether the mark is widely recognized by the general consuming public (the “fame” standard).
Surveys as Evidence of Dilution
If a famous mark is not inherently distinctive, survey evidence can be used to evaluate the degree of similarity between two marks and to measure a mark’s degree of recognition in the consumer’s mind. A secondary meaning survey can be used to measure a mark’s acquired distinctiveness. And dilution surveys can be used to establish the existence of actual association between the marks at issue.
Do You Need a Survey Expert?
Many surveys suffer from methodological shortcomings. When this occurs, the court may afford them little or no weight as evidence. To avoid this serious pitfall and ensure that the survey can withstand the rigors of litigation, it is crucial to hire qualified survey experts.
Consider Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 569-70 – Dist. Court S.D. New York (2007), for example, in which 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 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.”
Our firm is eminently qualified to provide you with trademark dilution and other types of litigation surveys for use in your intellectual property matter. Contact Keegan & Donato Consulting at (914) 967-9421 to find out more about how consumer data can help strengthen your case.