Prominent consumer survey consultants like Keegan & Donato Consulting can help you strengthen your trademark infringement case with independent consumer-based survey research solutions.
Survey evidence can provide crucial information about how consumers perceive marks, product designs, colors, websites, and other stimuli. Whether you need a pilot study on logo similarity or an intensive review of a product line, we can deliver intelligence quickly and within a wide range of budgets.
Keegan & Donato Consulting provides nationwide service to attorneys practicing in federal and state courts, before arbitration panels, the Trademark Trial and Appeal Board (TTAB), and other specialty venues. We have been engaged by top IP litigation firms such as Arnold Porter LLP in San Francisco, Blank Rome LLP in Philadelphia, Morgan, Lewis & Bockius LLP in Boston, and Crone Hawxhurst LLP in Los Angeles.
Effectiveness of Survey Evidence
Consumer surveys are often regarded by courts as the most persuasive evidence of the likelihood of confusion in trademark infringement litigation and TTAB proceedings. This is the most common trademark litigation issue that clients contact us about.
Under the Lanham Act, trademark owners who claim infringement and unfair competition are generally required to establish two elements: (1) that the defendant used the registered mark in commerce; and (2) that the use is likely to cause consumer confusion.
A likelihood of confusion survey addresses the issue of consumer confusion from a scientific perspective, providing direct evidence of the extent to which consumers believe that certain brands emanate from the same source or are somehow related.
Secondary meaning is another concept that can be measured by means of a consumer research survey in intellectual property matters. Secondary meaning occurs when relevant consumers associate an otherwise descriptive trademark with a single source. It is a powerful indicator that a mark is no longer descriptive and has been elevated in the minds of consumers as a distinctive identifier of a brand.
Acquired distinctiveness can also be measured through consumer survey research. When a mark acquires distinctiveness, it becomes capable of serving as a trademark by associating in the mind of the relevant public with a particular source of goods and services. This usually happens as a result of extensive advertising and widespread commercial use.
Avoiding Survey Flaws
Good survey evidence about consumer perceptions can be powerful evidence, but survey design flaws have resulted in partial or full exclusion of survey evidence from a case. For this reason, Keegan & Donato Consulting considers methodological design among the most crucial aspects of designing a consumer research study.
Our education and combined 25 years of experience conducting and critiquing consumer survey research has provided us the tools to design methodologically sound surveys following these (and other) established principles:
- Appropriate universe selection and sampling frame;
- Rigorous and valid survey design that is probative of the relevant issues in the case;
- Inclusion of representative, qualified respondents;
- Use of procedures to minimize potential biases in data collection;
- Use of objective, non-leading questions;
- Use of procedures to reduce guessing among respondents; and
- Full analysis and reporting of survey data.
Consumer surveys conducted by the consultants at Keegan & Donato Consulting can withstand the rigors of trademark litigation. Call us at (914) 967-9421 to find out more about our approach.