When you’re building or defending a brand, evidence beats assumptions almost every time. Establishing trademark rights with consumer surveys is about putting real consumer perception on the record. Do consumers actually make the connection? A consumer survey gives you the ability to prove what your mark means in the marketplace, not just what you hope it means.

Well-designed consumer surveys help show likelihood of confusion, secondary meaning, strength of mark, dilution, and other issues that sit at the heart of trademark rights.

Why Surveys Matter for Trademark Rights

Courts and the TTAB care about what buyers actually think. Surveys capture that reality in a structured, defensible way that can prove useful and significantly move the needle in your favor.

• Secondary meaning shows buyers associate a descriptive term or trade dress with a single source.
• Likelihood of confusion measures whether similar branding leads relevant consumers to think the products/services come from the same source.
• Dilution can quantify blurring or tarnishment of a famous mark—even without confusion.

When used, surveys become the backbone of your evidence and not just a side note. Without a doubt, they add strength to your case and might even form the backbone.

Secondary Meaning: Proving Acquired Distinctiveness

If your mark or trade dress started out descriptive, you may need to prove that it now points to you and only you.

A secondary meaning survey asks relevant consumers whether they associate that feature with a single company. Positive results help establish rights you can enforce and can be decisive in litigation or opposition.

Keegan & Donato regularly design these studies and target the right buyer universe for reliable answers that you can depend on.

Likelihood of Confusion: Making Enforcement Credible

To stop an infringer, you often need to show that there is confusion. Likelihood of confusion surveys use accepted formats such as Eveready (for well-known marks) or Squirt/Lineup (when consumers see brands side-by-side) to measure net confusion among the people who actually shop the category.

Choosing the correct format and control is critical to produce results a court will trust.

Dilution and Fame: Protecting What’s Well Known

Famous marks carry broader protection, but you still need proof.

Dilution surveys test whether another use blurs the distinctiveness of a famous mark or harms its reputation. They help quantify injury even when consumers are not confused about the source.

Methodology Judges Will Accept

Strong surveys mirror the marketplace.

That means:

• Defining the correct population
• Using representative sampling
• Randomizing exposure
• Employing appropriate controls
• Asking neutral, non-leading questions

Each choice should tie back to the legal issue in dispute so the results are clear, relevant, and admissible.

Keegan & Donato emphasize litigation-grade fundamentals from design through reporting.

Building Rights and Defending Them

Surveys don’t just help you win disputes. They can also fortify your brand strategy.

Data from likelihood of confusion or secondary meaning studies informs packaging changes, naming choices, and clearance decisions.

In opposition or cancellation proceedings, surveys show how your mark is perceived today, not years ago, which can be persuasive to the Board. And if you’re facing an opposing expert, a rigorous rebuttal can reduce the weight of a flawed survey or keep it out.

Why Partner With Keegan & Donato Consulting

Keegan & Donato focuses on litigation surveys for IP teams nationwide. The firm has designed, executed, and critiqued hundreds of studies admitted in federal and state courts, in arbitration, and before the TTAB.

With our team, you get start-to-finish support.

Practical Steps to Get Started

• Clarify the legal question. Are you proving secondary meaning, likelihood of confusion, or dilution? The survey must match the claim.
• Define the buyer universe. Identify who actually makes the purchase or influences it.
• Mirror real shopping. Choose stimuli and contexts that reflect shelf, site, or app experiences.
• Document everything. Courts value transparent methods and clean reporting.

Establishing trademark rights with consumer surveys means putting credible consumer evidence at the center of your case. Done right, surveys prove what your brand stands for, how buyers perceive it, and why your rights deserve protection. The consumer survey can prove pivotal. When you need a trademark survey, a marketing survey, or another type of consumer research survey to support your case, take advantage of Keegan & Donato’s expertise by contacting us online or calling us at (914) 967-9421