In trademark infringement cases, many courts consider consumer surveys to be strong circumstantial evidence. Tip the balance in your favor by engaging Keegan & Donato Consulting to help you develop fact-based evidence to support your case strategy.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation. We specialize in consumer-based survey research and have designed, executed, and critiqued hundreds of trademark surveys that have been admitted into evidence in state and federal courts, at arbitration, and to the TTAB and the NAD. We also have extensive testimony experience.
Value of Consumer Surveys in Trademark Infringement
Surveys are important tools in trademark litigation because they provide insight into actual consumer perceptions, often when no other scientific evidence is available.
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.
Evidence of actual confusion is not required. In many instances, the most persuasive evidence comes from a consumer research study. The court, however, may find them to be of limited value when not conducted by trained independent experts using sound methodologies.
For example, in Kate Spade LLC v. Saturdays Surf LLC, 950 F.Supp. 2d 639 – Dist. Court, S.D. New York (2013), the Court ruled that women’s apparel company Kate Spade LLC’s “Kate Spade Saturday” line of apparel did not infringe on a registered “Saturdays Surf NYC” trademark owned by men’s retailer Saturdays Surf LLC, finding that there was unlikely to be any consumer confusion between the two marks.
Both sides presented consumer survey testimony in an effort to measure consumer confusion. The Court, however, found both surveys to be of limited value and afforded them no weight in the decision.
Saturdays Surf LLC’s survey was determined to suffer from methodological flaws that raised “serious questions about the leading nature of the survey design.” Kate Spade LLC’s survey was found to be poorly designed.
Our Trademark Survey Methodology
Keegan & Donato Consulting follows established principles of consumer survey research beginning with a rigorous and valid survey design that explores the relevant issues in the case. Some of the industry best practices we build into our survey designs include:
- Appropriate universe selection and sampling frame;
- Inclusion of representative, qualified respondents;
- Use of procedures to minimize potential biases in data collection;
- Use of objective, non-leading questions;
- Use of procedures to reduce guessing among respondents; and
- Full analysis and reporting of survey data.
We are also skilled at identifying survey flaws and weaknesses that may not be apparent to an untrained eye. If you are confronted with potentially flawed surveys submitted by opposing experts, we can assist you in rebutting the credibility of their work in the context of your litigation.
The firm has been engaged by leading IP litigators across the nation, such as Stanley, Mandel & Iola, LLP in San Diego, Pashman Stein in New Jersey, SmithAmundsen LLC in Chicago, and Arent Fox in Washington, DC.
Keegan & Donato Consulting can advise you on the best approach for your particular trademark infringement survey and will work within your budget to get the results you need. Contact us today at (914) 967-9421 to explore our extensive capabilities.