Trademark infringement is a serious offense that can harm the reputation of a business and reduce its revenue. To establish a strong case in trademark disputes, businesses must rely on building a case to demonstrate the likelihood of consumer confusion, a critical element in proving infringement. Keegan & Donato Consulting can provide the survey evidence you need.
Keegan & Donato Consulting is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients across the nation. Our principals – Mark Keegan and Tony Donato – have extensive strategic and analytical skills and 30 years of combined expertise in designing, executing and critiquing consumer research studies in the context of litigation.
Types of Trademark Surveys
Trademark surveys are designed to gather information about how consumers perceive trademarks. They can help show that consumers are likely to be confused by a competitor’s use of a similar trademark and can be submitted as evidence in your case. Three common types of surveys are:
Likelihood of Confusion Survey: With a mounting number of brands competing for share of mind in the marketplace, some confusion about the origin of goods or services being offered under a particular trademark is inevitable. A well-executed standard or custom likelihood of confusion survey from Keegan & Donato Consulting can help you assess whether consumers are indeed confused. This type of survey is the most commonly used survey in trademark infringement cases.
Strength of Mark: The “strength” of a mark affects the legal protections available to a mark owner. In general, fanciful, arbitrary, and suggestive terms are considered inherently distinctive and are entitled to various trademark protections. Descriptive marks are unlikely to achieve trademark protection because they lack sufficient distinction to be associated by consumers with a single source.
Secondary Meaning: This type of survey is conducted to determine whether a trademark has acquired secondary meaning among consumers, meaning that consumers associate the mark with a particular product or service from a specific company. Keegan & Donato Consulting designs secondary meaning consumer surveys that target relevant consumers in your client’s market.
Do You Need a Trademark Survey?
Trademark surveys have played a key role in numerous court cases, for example:
Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. – 507 F.3d 252 (4th Cir. 2007): Louis Vuitton, the well-known luxury fashion brand and the plaintiff in this case, sued Haute Diggity Dog for trademark infringement and dilution based on the defendant’s use of a dog toy called “Chewy Vuiton” that parodied Louis Vuitton’s marks. The plaintiff conducted a strength of mark survey, which showed that a significant percentage of consumers who saw the Haute Diggity Dog toys believed they were associated with Louis Vuitton. The Fourth Circuit ultimately ruled in favor of Louis Vuitton, finding that Haute Diggity Dog had infringed on its trademarks and diluted their distinctiveness.
Polo Fashions, Inc. v. Craftex, Inc. (1982): In this case, Polo Fashions, a well-known fashion house selling clothing for men and women designed by Ralph Lauren, sued Craftex, Inc., a manufacturer of knit shirts, for trademark infringement because an embroidered emblem on the Craftex shirts was substantially identical to the plaintiff’s polo player symbol. The plaintiff conducted a survey that showed that consumers associated the Polo trademark with a specific type of clothing. The court found that the survey demonstrated that the Polo trademark had acquired secondary meaning and was entitled to protection.
Since direct evidence of actual consumer confusion is rarely available, courts consider surveys as strong circumstantial evidence when assessing whether trademark or trade dress infringement has occurred. However, hiring experts like Keegan & Donato Consulting is essential. Our careful application of methodologically sound guidelines in survey design, execution, and analysis increases their accuracy and improves their chances of being accepted by courts.
Businesses seeking to protect their trademarks and reputation should consider building a strong case with survey evidence. Keegan & Donato Consulting can help. Call us today at (914) 967-9421.