Understanding the significance and value of consumer surveys from Keegan & Donato Consulting will help establish that survey evidence is an essential tool in assessing the likelihood of confusion between two trademarks in infringement cases

About Us

Principals Mark Keegan and Tony Donato offer clients 30 years of combined experience and impeccable credentials in consumer-based survey research and data analysis. We follow a solid methodological foundation in survey design, execution, and presentation.

The firm is a member of the International Trademark Association (INTA), the American Marketing Association (AMA), the American Association for Public Opinion Research (AAPOR), the Association for Consumer Research (ACR), and ESOMAR, the leading global association for market, social and opinion researchers.

Mr. Keegan is an AMA Professional Certified Marketer. He has worked with top brands as a marketing strategist, helping to position them in the market and create innovative online advertising solutions.

Mr. Donato has served as a consultant in complex litigation matters. He has a background in marketing, intellectual property, and consumer behavior cases covering trademark, copyright, patent, best efforts, advertising, consumer surveys, business damages, and business marketing ethics.

Identifying the Likelihood of Confusion

A likelihood of confusion survey from Keegan & Donato Consulting is a valuable litigation tool because it addresses the issue of consumer confusion from a scientific perspective, providing empirical data regarding the extent to which consumers believe that the brands at issue come from the same source or are somehow related.

By asking relevant consumers to respond to certain stimuli and recording their answers, it is possible to measure their attitudes and behaviors and understand how they perceive a contested mark.  This understanding of how consumers view the relationship between brands forms the basis of a likelihood of confusion analysis.

Our Survey Design Best Practices

Some of the industry best practices that Keegan & Donato Consulting builds into the firm’s survey designs include:

• Appropriate universe selection and sampling frame;
• Inclusion of representative, qualified respondents;
• Use of procedures to minimize potential biases in data collection;
• Usage of objective, non-leading questions;
• Using methods to reduce guessing among respondents; and
• Complete analysis and reporting of survey data.

We employ classic survey designs and will develop innovative custom survey designs to meet the needs of each case. Our industry-leading online survey software platform facilitates the programming and execution of advanced survey designs, including complex skip logic, advanced rotation, and randomization of questions, answer options, and stimuli.

Value of a Methodologically Sound Survey

In Rolex Watch USA, Inc. v. Michel Co., 179 F.3d 704 (9th Cir. 1999), Rolex sued Michel Co., a watchmaker, for trademark infringement, asserting that Michel reconditioned used Rolex watches with unauthorized, generic replacement parts but maintained the original Rolex marks on altered “Rolex” parts without adequate disclosures that the modified watches contain non-Rolex parts, which was inadequate for preventing consumer confusion.

The court relied heavily on a likelihood of confusion survey conducted by Rolex to establish whether or not consumers were confused between the two trademarks. The survey showed that a significant percentage of consumers believed that Rolex made the Michel watches. The court found in favor of Rolex and awarded damages to the company.

Conclusion

Whether you are the plaintiff or defendant, understanding the significance of trademark survey evidence can assist you in your litigation and help you determine a strong case strategy. Contact Keegan & Donato Consulting today at (914) 967-9421 to explore our affordable services.