Presenting consumer survey evidence is not mandatory, but its importance lies in helping you build a stronger case. Keegan & Donato Consulting designs and executes surveys that will withstand the rigors of your trademark litigation.
Keegan & Donato Consulting is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients across the nation. We are one of the most experienced companies in the field of trademark litigation.
Principals Mark Keegan and Tony Donato have over 25 years of cumulative experience in the field of consumer research and have extensive testimony experience. Their credentials include:
- Juris Doctor from Brooklyn Law School (Keegan)
- Member of the New York and Connecticut Bar Associations (Keegan)
- Bachelor of Arts in History from Pace University (Keegan)
- Master of Public Policy from Georgetown University (Donato)
- Bachelor of Arts in Politics from Ursinus College (Donato)
- Co-author of peer-reviewed journal articles (Donato)
What We Do for Our Valued Clients
- Design, execute and present results of:
- Critique and rebuttal of trademark and marketing surveys;
- Damages and forensic economic analyses;
- Expert witness testimony on consumer survey, marketing and economic issues.
Do You Need a Consumer Survey?
Surveys are valuable tools in trademark litigation because they provide insight into actual consumer perceptions, often when no other scientific evidence is available, and may help you build a stronger case.
There are, of course, strategic reasons why you may decide to proceed without survey evidence. Perhaps the 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 using sound methodologies in a trademark infringement matter.
For example, in 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 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 turned out to be inadequate.
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.”
Get in touch with 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.