Trademark survey evidence can be robust, but it is not typically accepted without challenge. Courts scrutinize surveys for common mistakes and flaws in methodology, which may lead to a judge giving the survey little weight or deeming some or all of it inadmissible. Hiring highly qualified survey experts like Keegan & Donato Consulting will help protect your survey from criticism.
Keegan & Donato Consulting, located in Rye, New York, 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 more than 25 years of cumulative experience in the field of consumer research.
Mr. Keegan is an AMA Professional Certified Marketer and has worked with top brands as a marketing strategist helping to position them in the market and create innovative online advertising solutions. Mr. Keegan and Mr. Donato have wide-ranging skills and tools that can help you strengthen your case.
Hire Qualified Survey Experts to Prevent Mistakes
Survey evidence can be a persuasive component of your overall case strategy but it will receive the critical attention of the courts and may be given little weight or excluded from evidence if it was poorly designed or contains mistakes.
Consider Valador, Inc v. HTC Corporation, Case No. 1:16-cv-1162, Dist. Court, E.D. Virginia (2017). Valador, the plaintiff in this trademark dispute, alleged that the defendants infringed on its registered mark, “VIVE,” used in connection with the sale of its software, by selling a headset they called the “HTC Vive.”
The plaintiff hired an expert to conduct a survey to support its likelihood of confusion claim. The defendants filed a motion to exclude the survey testimony because the expert was unqualified and used unreliable survey methods and principles to reach his conclusions.
The court determined that the plaintiff’s expert “was not qualified to design a survey or interpret survey results” because he “lacked the necessary experience with trademark infringement claims” and granted the defendant’s motion.
The survey results were deemed inadmissible because they “(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.”
Keegan & Donato Consulting has partnered with leading firms across the nation, including Blood Hurst & O’Reardon LLP (San Diego), Ropes & Gray LLP (Washington, DC), SmithAmundsen LLC (Chicago), and Notaro, Michalos & Zaccaria PC (New Jersey), on litigation surveys that have been accepted as evidence in matters involving a broad range of products and services.
To learn more about the common mistakes in trademark survey methodology that could harm your case, consider Keegan & Donato Consulting. Get in touch with us today at (914) 967-9421 to learn more about our affordable services.