Whether you are interested in false or deceptive advertising surveys, marketing research surveys, or other types of trademark surveys to prove or refute IP litigation issues, take advantage of the extraordinary expertise of Keegan & Donato Consulting.
Keegan & Donato Consulting works on behalf of both plaintiffs and defendants to provide research, analysis, affidavits, declarations and expert reports as needed in support of trademark infringement and trade-dress litigation, and has collaborated extensively on cases involving marketing, business and financial issues.
We have more than 25 years of experience in conducting consumer-based surveys in cases involving Lanham Act claims, likelihood of confusion, strength of mark, consumer perception, and a wide range of marketing and commercial litigation issues.
False Advertising under the Lanham Act
The Lanham Act, as codified in 15 U.S. Code §1125, is the statutory basis for most trademark claims. The false advertising section (commonly known as Section 43(a)) gives competitors a cause of action against rivals who engage in misleading advertising or labeling.
Issues raised in the Lanham Act are particularly well-suited to testing through consumer research by addressing the ways in which consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce. In fact, the evidence derived can be very persuasive.
How a Survey Expert Can Help
While there is nothing in the Lanham Act that requires litigants to introduce consumer surveys in false or deceptive advertising disputes, a number of court decisions have drawn negative inferences from the absence of survey evidence and discussed how that absence impacted their decisions.
Although good survey evidence can be powerful, consumer surveys typically are not accepted without challenge. Courts demand accurate, real-world data, and poor designs and methodological flaws can result in partial or full exclusion of survey evidence from a case.
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.”
If you intend to invoke the protections of the Lanham Act, do not overlook the value of incorporating a well-designed, scientifically sound consumer survey into your case strategy.
When you need litigation surveys to help support or contest an allegation of false or deceptive advertising in your case or to rebut the credibility of an opposing expert’s survey evidence, contact Keegan & Donato Consulting at (914) 967-9421 to find out more about how consumer data can help strengthen your case.