When you face complex issues in your IP litigation, explore the applications of surveys conducted by Keegan & Donato Consulting that can help you establish how consumers view your clients’ trademarks and the products and services associated with those marks.
About the Firm
Keegan & Donato Consulting is located in beautiful Rye, New York, and serves clients nationwide. We work in support of plaintiffs or defendants to provide research, analysis, affidavits, declarations, expert reports, and rebuttal reports as needed in their trademark infringement and trade dress litigation. We have also collaborated extensively on marketing, business, and financial cases.
With 30+ years of combined experience, Mark Keegan and Tony Donato can deliver intelligence quickly. We work on a fixed rate or hourly basis based on your needs and will assist you with designing a survey that is both reliable and within your budget.
Just a Few of Our Survey Specialties
Likelihood of confusion: We measure the likelihood of confusion through traditional survey designs and crafting innovative custom surveys to ascertain whether consumers are confused by a party’s use of a contested mark.
Secondary meaning: Secondary meaning can be measured through a consumer survey. It is a powerful indication that a mark is no longer descriptive but has risen in the minds of consumers to become a distinctive identifier of a specific brand.
False Advertising: Issues raised in the Lanham Act, such as false advertising or labeling, are well-suited to testing through consumer surveys by addressing how consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce.
Avoid Survey Flaws by Hiring an Expert
Surveys can provide powerful and valid evidence, but an overly broad survey that does not address the critical issues in a case, even if based on an acceptable methodology, may be deemed inadmissible by the Court or given little weight.
In Kate Spade LLC v. Saturdays Surf LLC, 950 F.Supp. 2d 639 – Dist. Court, S.D. New York (2013), the Court found limited value in consumer survey evidence presented by both parties and afforded the surveys no weight at all in this infringement litigation. In addition, the Court found the plaintiff’s survey to be poorly designed, and the defendant’s survey was determined to suffer from methodological flaws that raised “serious questions about the leading nature of the survey design.”
In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), there is a long discussion about why the Court made the decision that survey evidence submitted by the defendant in this trademark infringement and unfair competition case, “had too many methodological flaws to be of any probative value.”
These are excellent examples of why it’s essential to employ experts, such as Keegan & Donato Consulting, who can:
- conduct surveys with rigorous methodological principles
- document and support the choice of survey questions and sample method
- minimize the possibility of bias
- carefully analyze the data gathered
- support the results with knowledgeable, reliable expert testimony
Keegan & Donato Consulting would be happy to advise you on the many applications of surveys in litigation. Contact us at (914) 967-9421 to discuss your needs.