When you are assessing consumer survey companies for your intellectual property case, consider a highly qualified consultancy firm like Keegan & Donato Consulting that has vast experience in designing, implementing, and evaluating a full spectrum of trademark surveys.
Keegan & Donato Consulting is one of the most experienced companies in the field of trademark litigation. With over 25 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 infringement matters.
Our nationwide services include these and other areas:
- State-of-the-art survey design and execution
- Full-service data gathering and reporting capabilities
- Damages analysis and forensic economic analysis
- Pilot studies and exploratory research
- Collaboration on complex commercial litigation issues
- Critique and rebuttal of opposing experts’ studies and reports
- Advice on questioning of opposing experts in deposition and at trial
- Expert witness testimony on consumer survey, marketing & economic issues
Survey Flaws Could Damage Your Case
Consumer surveys are important in determining whether competing marks are likely to confuse consumers, whether a descriptive mark has acquired secondary meaning, whether a mark is famous, and whether one mark is likely to dilute a competing mark.
Surveys are highly susceptible to criticism, however, and you should expect the courts to scrutinize them for methodological flaws. Sample selection issues, interviewer bias, and suggestive wording may cause a judge to attribute little weight to the survey or deem some or all of the results inadmissible.
In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), for example, there is an extensive discussion wherein the Court excludes the defendant’s survey evidence after concluding that it “had too many methodological flaws to be of any probative value.”
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the Court deemed the plaintiff’s surveys inadmissible after finding them to be unscientific and poorly constructed. The Court also rejected the plaintiff’s survey expert as “unqualified to design a survey or to interpret survey results” [see 45 F.Supp.3d 1167-1170].
In First Data Merchant Services Corp. v. SecurityMetrics, Inc., No. RDB–12–2568, 2014 WL 6871581 (D. Md. Dec. 3, 2014), the report, opinions and testimony of the defendant’s survey expert were excluded by the Court from the false advertising portion of the case as a result of the expert’s failure to use a control to test for consumer confusion (a “significant flaw”), and “several other troubling aspects” of its methodology.
Examples like these illustrate why it is crucial to hire qualified survey experts, such as Keegan & Donato Consulting. Our methodologically sound consumer research studies and expert testimony will meet the courts’ standards for design, execution, and analysis and can serve as powerful evidence in your case.
To learn more about Keegan & Donato Consulting’s capability for designing, implementing and evaluating surveys that could strengthen your trademark infringement case, get in touch with us at (914) 967-9421. We will work within your budget to get you the results you need.