When you need sound and reliable support for trademark litigation in Atlanta, Georgia, contact the specialty research consultants at Keegan & Donato Consulting.
Keegan & Donato Consulting is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients in the context of intellectual property disputes. Principals Mark Keegan and Tony Donato have over 25 years of cumulative experience in the field of consumer research.
The firm designs, executes, analyzes, and presents the results of trademark litigation surveys in these and other areas:
- Likelihood of Confusion
- Secondary Meaning
- Strength of Mark
- Lanham Act Claims
- Acquired Distinctiveness
- Survey Critiques and Rebuttals
Our survey expertise combined with our analytical skills and extensive knowledge of intellectual property issues, allow us to quickly understand the dynamics of client companies and markets. We have provided our services to leading IP litigators across the nation, such as LeClairRyan in Los Angeles, Day Pitney LLP in New York City, Wiley Rein LLP in Washington, DC, and Blank Rome LLP in Philadelphia.
Why 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. While presenting survey evidence is not mandatory, it 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 study.
Regardless of the reasons, there are pitfalls to proceeding without survey evidence conducted by trained independent experts using sound methodologies in a trademark infringement matter.
The Perils of Not Hiring an Expert
The following example illustrates the importance of choosing an experienced expert who is capable of explaining his or her methodology in a clear and concise manner and able to withstand cross-examination.
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 its claim of likelihood of confusion, the plaintiff hired a consultant who purported to be an expert in marketing, marketing research, and conducting market surveys, but whose qualifications and capabilities turned out to be inadequate.
The Court determined the expert was “not qualified to present his proffered opinions” and excluded the survey results in their entirety, 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.”
For trademark attorneys in Atlanta and across the nation, Keegan & Donato Consulting provides litigation support to ensure that the evidence you introduce will hold up to scrutiny from courts and opposing experts. Get in touch with us today at (914) 967-9421 to learn more about our wide range of services.