In the world of trademark litigation, consumer surveys have become an essential tool for attorneys and brand owners alike, providing valuable insights and evidence in trademark cases. Whether you are a seasoned litigator or a brand owner facing your first legal battle, Keegan & Donato Consulting can help you conduct the most appropriate survey for your specific case.
Keegan & Donato Consulting develops consumer surveys for plaintiffs and defendants across the nation on the likelihood of confusion, strength of mark, secondary meaning, dilution, genericness, acquired distinctiveness, false advertising, and other trademark and trade dress topics.
We have partnered with firms nationwide, including SmithAmundsen LLC (Chicago), Ropes & Gray LLP (Washington, DC), Notaro, Michalos & Zaccaria PC (New Jersey), and Blood Hurst & O’Reardon LLP (San Diego), on surveys that have been entered into evidence in litigation involving many different products and services.
The Importance of Surveys in Trademark Litigation
Surveys are indispensable in trademark litigation because they provide objective data on consumer perceptions. In cases involving trademark infringement or dilution, they can help establish the likelihood of confusion, consumer association, and the strength of the trademark. They allow brand owners and attorneys to gather empirical evidence, substantiate their claims, and strengthen their arguments in Court.
One of the key benefits of surveys is that they provide an unbiased representation of consumer opinions. Unlike testimonial evidence or expert opinions, surveys rely on data collected directly from the target market, making them highly persuasive and objective. Judges and juries often find survey evidence more compelling because it is rooted in real-world consumer perceptions.
Types of Surveys Commonly Used in Trademark Litigation
Several consumer survey types are commonly used in trademark litigation, each serving a specific purpose and providing unique insights. They include:
The likelihood of confusion is commonly addressed by a consumer survey. When well-designed, it can deliver direct scientific evidence of the degree to which a consumer believes a relationship exists between the plaintiff’s and the defendant’s mark, brand, or product.
Secondary meaning occurs when consumers associate an otherwise descriptive mark with one source. It can be measured through a consumer study and may indicate that a mark is no longer descriptive and has become a distinctive brand identifier in consumers’ minds.
Acquired distinctiveness can be tested with a consumer survey. When a mark reaches distinctiveness, it can serve as a trademark by associating in the minds of consumers with a particular source.
Case Studies: Successful Use of Surveys in Litigation
To illustrate the power of surveys in trademark litigation, let’s explore two case studies where surveys played an important role.
In Parks, LLC v. Tyson Foods, Inc., 2015 WL 4545408, No. 5:15–cv–00946 (E.D. PA. May 10, 2016), plaintiff Parks claimed that the defendant’s “Park’s Finest” sausages and hot dogs infringed on its “Ball Park Franks” brand. The Court criticized the methodological flaws in Parks’ consumer survey. It “was not probative of secondary meaning” and “was not directed at the appropriate universe of consumers.” Tyson Foods prevailed.
In Vital Pharmaceuticals, Inc. v. Monster Energy Company – Dist. Court, SD Florida (2021), Rage energy drink maker, Vital Pharmaceuticals, Inc. (VPX), filed suit against Monster Energy, alleging that their Reign energy drink infringed on its Bang energy drink. The Court determined that “(2) VPX has failed to put forth direct evidence of actual confusion, and (3) VPX’s indirect evidence of confusion, in the form of a survey, is almost comically flawed.” Monster Energy prevailed.
How We Can Help
As trademark survey experts, Keegan & Donato Consulting would be pleased to advise you on achieving the admissibility of your consumer survey evidence. Contact us at (914) 967-9421 to explore our affordable services.