In today’s competitive business environment, companies often resort to deceptive advertising practices to lure consumers away from their competitors. Deceptive advertising surveys can be a valuable tool in trademark litigation cases. If you believe you have a deceptive advertising claim, Keegan & Donato Consulting offers the data-gathering capabilities and expertise you need to strengthen your case.

Principals Mark Keegan and Tony Donato offer over 30 combined years of expertise in conducting consumer research studies in intellectual property disputes. When your case involves proving whether a particular trademark or advertisement causes consumers to be confused or misled, we can help.

Strategy and Methodology

The Lanham Act is the statutory basis for the majority of trademark claims. Its false advertising section gives you a cause of action against competitors who are involved in misleading advertising or labeling. When the advertising is not obviously false or misleading, consumer surveys can be of enormous value in determining the likelihood and percentage of deception in a relevant consumer universe.

Our consumer research studies address the issue of deceptive advertising from a scientific perspective, providing empirical data regarding the extent to which consumers believe the brands at issue come from the same source or are somehow related and whether their responses to advertising, labeling, packaging, and other allegedly deceptive communications affect their purchase decisions.

Our services include:

• Pre-survey consulting
• Exploratory research
• Survey design, execution, and complete analysis and reporting
• Critique of reports from opposing experts
• Assistance with deposition and trial questioning of expert witnesses
• Rebuttal of survey evidence from opposing experts
• Expert witness testimony

To withstand the rigors of litigation, surveys must have a solid methodological foundation and adhere to established principles of consumer survey research. Keegan & Donato Consulting follows industry best practices in our field and relies upon our extensive education and combined experience in conducting and critiquing consumer surveys.

A notable example of a court case where a deceptive advertising survey was conducted is the case of Pom Wonderful LLC v. Coca-Cola Co., which the U.S. Supreme Court decided in 2014. The plaintiff, Pom Wonderful, a company that produces pomegranate juice, sued Coca-Cola for false advertising, alleging that Coca-Cola’s “Pomegranate Blueberry” juice blend was misleading because it contained only trace amounts of pomegranate and blueberry juice. The plaintiff conducted a deceptive advertising survey to support its claim.

The survey results indicated that many consumers were likely to be deceived by the label of the juice blend, and the trial court found that Coca-Cola’s advertising was indeed misleading. However, the case ultimately turned on the issue of whether Pom Wonderful had standing to sue under the Lanham Act, which governs false advertising claims. The Supreme Court held that the company did have standing to sue but did not address the substantive issues of false advertising and deceptive advertising surveys.

Final Thoughts

Consider Keegan & Donato Consulting for assistance with your Lanham Act deceptive advertising trademark litigation. We can help you meet the courts’ requirements for survey design, execution, and analysis. Get in touch with us today at (914) 967-9421 to learn more about our wide range of affordable services.