Are you wondering if surveys can be used defensively in trademark litigation? The short answer is absolutely. Well-designed consumer surveys don’t just prove a plaintiff’s case, they can also help you defend.

Here are just a few ways that surveys can be used defensively in trademark litigation:

• To show low (or no) confusion
• To demonstrate that a term hasn’t acquired secondary meaning
• To test claims under the Lanham Act
• To expose flaws in your opponent’s methodology

Keegan & Donato works on both sides of the “v.” and regularly prepares survey rebuttals and critiques that translate technical problems into plain English for courts and juries.

How Defense Teams Use Surveys

Here are examples of how a defense team uses surveys:

Undercut Likelihood of Confusion

If the plaintiff’s theory hinges on confusion, a defense survey can test the same marketplace reality, often with a proper test-versus-control design, to effectively show that confusion sits at or near noise levels. Selecting the right format (Eveready vs. Squirt) and the right population is key, and those choices should track brand awareness and shopping context.

Challenge “Acquired Distinctiveness” And Secondary Meaning

When the other side claims consumers associate a descriptive term or design with one source, a targeted study can check that claim. If the data show consumers don’t make that link, you’ve weakened a core element.

Push Back On Genericness Allegations

Defense teams can also deploy recognized formats like Teflon to measure whether people use a term generically or as a brand which is useful whether you’re attacking or defending a mark. The point is to test actual consumer usage, not legal assumptions.

Address False-Advertising Theories

Surveys can probe what consumers take away from a claim, whether a disclaimer works, and whether an alleged message is material to purchasing–issues that often decide Lanham Act cases.

Don’t Forget the “Defensive” Survey You May Already Have: The Rebuttal

Sometimes the most effective defense is not an affirmative survey, but a critique of the plaintiff’s survey evidence.

A strong rebuttal ties survey flaws directly to the legal issues:

• The wrong universe
• Weak or missing controls
• Biased stimuli
• Leading questions
• Demand effects
• Poor quota management
• Sloppy data cleaning

The goal is to show how those choices impactconfusion (or deception) rates and to illustrate what a sound design would have produced. Keegan & Donato prepare rebuttal reports, advise on deposition strategy, and testify when needed.

What Makes A “Court-Ready” Defensive Survey (or Rebuttal)?

• Method first. Sound universe selection, neutral stimuli, objective wording, and rigorous controls. Courts notice.
• Format that fits the marketplace. Eveready for famous marks; Squirt for proximate encounters; Teflon for genericness.

• Clear, transparent reporting. Analyses should be easy to follow, with statistics that match the design and conclusions that stay within the data.

When to Consider a Defense Survey

• The plaintiff’s expert filed an unexpectedly high number, and you need an independent read on the marketplace.
• You expect a Daubert fight and want to show the court there’s a reliable way to test the issues.
• You’re heading into mediation and need credible evidence to rebalance settlement posture.

Keegan & Donato designs and critiques surveys across likelihood of confusion, strength of mark, secondary meaning, acquired distinctiveness, and other Lanham Act issues. In addition, the team has decades of combined experience supporting litigators nationwide.

Can surveys be used defensively in trademark litigation? Yes, surveys are powerful defensive tools in trademark litigation. Reach out to Keegan & Donato to start a conversation online or call (914) 967-9421.