Many wonder, can survey evidence prove irreparable harm to a brand? The short answer is yes, good surveys can be powerful proof. When you’re asking a court for an injunction, you need to show that the harm to your brand is real, ongoing, and hard to fix with money alone. Consumer surveys do exactly that by revealing what’s happening in buyers’ heads such as confusion, lost control of reputation, erosion of distinctiveness, or deceptive takeaways that drive decisions.

Keegan & Donato specializes in building and customizing surveys that surface those signals in a way courts understand.

What a Likelihood of Confusion Survey Actually Proves

Injunctions turn on equitable factors. After the Supreme Court’s eBay v. MercExchange decision, many courts stopped presuming irreparable harm and asked for real evidence, especially at the preliminary stage. Surveys stepped into that gap by measuring confusion, association, or misleading messages where spreadsheets can’t.

Even after Congress revived a rebuttable presumption of irreparable harm in the 2020 Trademark Modernization Act, judges often still look for concrete proof. A credible survey helps you carry that burden and helps you withstand a defendant’s rebuttal.

What a Court-Ready Survey Can Show

• • Loss of control over reputation and goodwill. Do buyers think your rival is you? That perception, once planted, is tough to undo.
  • Material deception. Are people taking away a message that actually affects purchase decisions?
  • Erosion of distinctiveness. Are consumers sliding from brand use to generic use?
  • Marketplace interference you can’t audit with receipts. Missed impressions, diverted clicks, and brand drift don’t show up neatly in sales reports—but they show up in respondent data.

The Design Details That Make (Or Break) Your Evidence

Courts scrutinize methodology, not marketing gloss. That means the right universe, test-vs.-control structure, neutral stimuli, non-leading questions, and transparent, quality controls.

Keegan & Donato’s litigation-focused approach centers on these fundamentals. Plus, modern programming (randomization/rotation, skip logic) and qualified panels, so your results read cleanly and defend cleanly.

Use Cases: Offense and Defense

• Preliminary injunctions. Pair the TMA’s presumption with fresh survey evidence to show the court what’s happening now and to survive a rebuttal.
• Permanent relief. Demonstrate long-term brand harm that money won’t fix.
• Rebuttal reports. If the other side’s survey inflates confusion or “harm,” a methodical critique can show why the numbers don’t hold up (wrong universe, weak control, biased wording).

Now that we’ve addressed the question, “Can Survey Evidence Prove Irreparable Harm to a Brand?”  You know that you cannot manage what you cannot measure, and in trademark cases, survey evidence is how you measure irreparable harm. If you need courtroom-ready data on confusion, brand association, or deceptive takeaways, Keegan & Donato can scope a defensive or offensive survey (or rebuttal) that fits your facts and timing. Start a conversation online or call (914) 967-9421 to talk through options.