Trademark infringement occurs when a party uses a trademark that is identical or confusingly similar to another party’s trademark without the owner’s permission. When a dispute arises, a party may use litigation surveys and/or rebuttals to support its claim or defense. Keegan & Donato Consulting is ready to help.

Located in Rye, New York, we are a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients nationwide in the context of intellectual property disputes.

With over 30 years of combined experience, proven survey methodologies, and deep operational insight, principals Mark Keegan and Tony Donato have expertise on many topics in the areas of trademark and trade dress.

Litigation Surveys

Litigation surveys can take several forms. The most common types of surveys used in trademark infringement cases are:

• Likelihood of Confusion
• Secondary Meaning
• Strength of Mark
• Acquired Distinctiveness
• Lanham Act Claims

Survey Rebuttals

In complex litigation matters, having a knowledgeable, experienced and well-trained expert or consultant on your side can be extremely important.

Trademark surveys can be complicated and are prone to researcher errors that can affect the validity of the data collected. As experts in consumer research studies, Keegan & Donato Consulting has reviewed and rebutted hundreds of consumer surveys conducted in conjunction with litigation.

With an unparalleled knowledge of the science and methodology behind consumer surveys, we can identify flaws and weaknesses in a study that may not be apparent to an untrained eye but may help you refute the credibility of an opposing expert’s work.

Is a Survey Worth the Cost?

Courts can be harsh when confronted with poorly designed, unscientific surveys and may give such evidence little weight or partially or wholly exclude it. Consider the trial court’s post-trial ruling in the following case as a cautionary tale.

In Black & Decker Corp. v. Positec USA Inc., 1:11-cv-5426, Dist. Court, N.D. Illinois, Eastern Division (2017), flawed survey evidence caused the Court to toss out a previous jury verdict for trade dress infringement and a $54 million award in favor of the Plaintiff and order a new trial.

The Court concluded that the likelihood of confusion survey proffered by the Plaintiff was “so informally designed and conducted that it fails key tests of professionalism and reliability” and should have been excluded from trial.

“Even if … the survey was not the sole evidence on likelihood of confusion in the trial record, it was the linchpin of Plaintiffs’ case on likelihood of confusion— an issue that was hotly contested at trial. Given that Plaintiffs presented no evidence that any consumers were actually confused about the origin of Defendants’ goods, there is a high probability that [the expert’s] flawed testimony unfairly influenced the jury’s verdict… and admission of the survey and [the expert’s] testimony about the survey was fundamentally unfair to Defendants.”

Next Steps

When you need litigation surveys or rebuttals for trademark infringement cases, call Keegan & Donato Consulting at (914) 967-9421. We will help you design a reliable, methodologically sound consumer survey or rebuttal report to support your case.