IP lawyers and litigators who require a marketing research survey, trademark survey, or another type of consumer survey to support a case will appreciate the extraordinary expertise of a company such as Keegan & Donato Consulting.
Keegan & Donato Consulting is a specialty research consultancy located in beautiful Rye, New York. We provide a comprehensive suite of services, including consulting on litigation strategy for both plaintiff and defendant clients, consumer research studies, expert reports, testimony in trademark and trade-dress litigation, testimony at deposition and/or trial, and rebuttal of opposing parties’ surveys when applicable.
With more than 25 years of combined experience in the field, principals Mark Keegan and Tony Donato have developed surveys for and collaborated with firms that manage some of the largest trademark portfolios in the world, such as Giampolo Law Group in Philadelphia, Schepisi & McLaughlin, P.A. in New Jersey, Hogan Lovells in Washington, DC, Arnold & Porter LLP in San Francisco, and Riemer & Braunstein LLP in Boston.
Value of Consumer Surveys
Surveys are an invaluable tool for brands who want to gauge consumer perception of products or services; measure consumer understanding of contested marketing claims; assess the buying habits of a target market; test the marketplace for a new brand name, logo or concept; and other key marketing issues.
Keegan & Donato Consulting designs, executes, analyzes, and presents the results of IP litigation surveys, including:
In addition to our consumer survey design capabilities, the firm provides services in these and other areas:
- Full-service data gathering and reporting
- Marketing, damages and forensic economic analysis
- Collaboration on complex commercial litigation issues
- Pilot studies and exploratory research
- Critique of opposing experts’ studies and reports
- Advice on deposition and trial questioning of opposing experts
Is a Consumer Survey Really Necessary?
The Lanham Act, as codified in 15 U.S. Code §1125, is the statutory basis for most trademark claims. The issues raised are well-suited to testing through consumer survey research by addressing the ways in which consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce. In fact, the resulting evidence can be quite persuasive.
Although nothing in the Lanham Act requires litigants to introduce consumer surveys, a number of court decisions have drawn negative inferences from the absence of survey evidence and discussed how the absence impacted their decisions.
In Pharmacia Corp. v. Alcon Labs, Inc., 201 F.Supp. 2d 335, 373 (D.N.J. 2002), for example, the court noted that, “Pharmacia is not legally required to conduct a confusion survey. But under the circumstances of this case, Pharmacia’s failure to conduct any confusion survey weighs against its request for a preliminary injunction. Such a failure, particularly when the trademark owner is financially able, justifies an inference that the plaintiff believes the results of the survey will be unfavorable.”
Likewise, in King-Size, Inc. v. Frank’s King-Size Clothes, Inc., 547 F.Supp. 1138, 1162 (S.D. Tex. 1982), the court noted that, “Plaintiffs did not present to the Court a survey or any other direct evidence of actual confusion. The Court views these omissions as both suspect and significant.”
We encourage IP lawyers and litigators who are interested in reliable, affordable consumer surveys to get in touch with Keegan & Donato Consulting at (914) 967-9421 to learn more about our services.