Keegan & Donato Consulting, a specialty research consultancy, is located in Rye, New York. We provide a complete suite of services, including consulting on litigation strategy for both plaintiff and defendant clients across the nation, consumer research studies, expert reports, testimony during litigation, testimony at deposition and/or trial, and rebuttal of opposing parties’ surveys when applicable.
What Can Be Measured by Consumer Surveys?
Surveys can be extremely useful as you attempt to measure issues related to intellectual property matters and provide evidence of infringement.
Likelihood of confusion is a common issue addressed by consumer survey research. A well-designed survey can provide direct scientific evidence of the extent to which consumers believe there is a relationship between the plaintiff’s and the defendant’s mark, brand, or product.
Secondary meaning, which occurs when consumers associate an otherwise descriptive mark with a single source, can be measured by means of a consumer research study, and may provide a strong indication that a mark is no longer descriptive and has become a distinctive identifier of a brand in the minds of consumers.
Trademark dilution occurs when an infringing party uses a famous mark in a way that tarnishes the mark’s reputation for quality or dilutes its strength by blurring its distinctiveness. Consumer recognition of a famous mark can be measured directly by a survey.
Acquired distinctiveness can be measured with consumer survey research. When a mark acquires distinctiveness, it becomes capable of serving as a trademark by associating in the mind of consumers with a particular source of goods and services. This usually happens as a result of extensive advertising and widespread commercial use.
Trade dress, like a trademark, is protectable under the Lanham Act. Conducting a consumer survey can help you gather the evidence to prove whether the trade dress in question has established secondary meaning or is likely to cause confusion in the marketplace.
Have You Considered Proceeding Without Survey Evidence?
Perhaps your client cannot afford to invest in a survey. Perhaps your pilot survey failed to produce adequate results. Or, perhaps the consumer survey presented by your adversary is so flawed that you hope a rebuttal expert can critique the results without having to conduct another survey. Regardless of the reasons, it can be hazardous to proceed without survey evidence that is designed and executed by trained independent experts.
An example is Valador, Inc v. HTC Corporation, 1:16-cv-1162 – Dist. Court, E.D. VA (2017). The plaintiff, a NASA contractor, alleged that the defendant, one of the world’s largest cell phone makers, violated its trademark on 3-D rendering software (“VIVE”) by marketing a virtual reality headset with a similar name (“HTC Vive”).
To support the likelihood of confusion claim, the plaintiff hired a consultant who claimed to be an expert in marketing, marketing research, and conducting market surveys, but whose qualifications and capabilities fell short.
The Court excluded the survey results in their entirety, determining that the expert was “not qualified to present his proffered opinions,” and finding that the survey “(1) failed to evaluate the proper universe of respondents; (2) did not replicate market conditions; (3) neglected to use a control group; (4) eschewed the recognized methodologies for conducting trademark confusion surveys; and (5) asked improperly leading questions. These fundamental flaws, taken together, render the survey so unreliable as to be inadmissible.”
Contact the experts at Keegan & Donato Consulting at (914) 967-9421 to learn more about the importance of consumer survey evidence in trademark litigation. We work on a fixed rate or hourly basis depending on the needs of each client, and will help you design a reliable, methodologically sound consumer study.