As you consider consumer surveys for evidence in your trademark infringement litigation, we encourage you to evaluate the services of Keegan & Donato Consulting. Consumer surveys must be well-designed and scientifically sound, or they may be given little weight by the court or partially or completed excluded. We can help.
Keegan & Donato Consulting offers a complete suite of consulting services, including skills and tools that can help you strengthen your case. Our specialties include:
- Likelihood of Confusion Analysis & Surveys
- Secondary Meaning Analysis & Surveys
- Strength of Mark Analysis & Surveys
- Lanham Act Analysis & Surveys
- Consumer Perception Analysis & Surveys
- Consumer Understanding Studies
- Trade Dress Analysis & Surveys
- Damages and forensic economic analyses
- Collaboration on complex commercial litigation issues
- Pilot studies and exploratory research
- Expert Witness Testimony
- Critiqueof opposing experts’ studies and reports
- Advice on deposition and questioning of opposing experts
Keegan & Donato Consulting can assist in solving your intellectual property litigation challenges with the actionable insight that can be gained from a consumer research study that is designed by highly qualified experts who have the ability to deliver results within a wide range of budgets.
Don’t Allow a Flawed Survey to Damage Your Case
Consumer surveys and the experts who conduct them are subjected to scrutiny by courts. Methodological flaws. issues surrounding sample selection, interviewer bias, and suggestive wording may cause the Court to give a survey little weight, or deem it inadmissible.
In Dardenne v. MoveOn.org, Civil Action No. 14-00150-SDD-SCR, Dist. Court, M.D. Louisiana (2014), the court placed “little weight on the (plaintiff’s) survey results for the reason that the survey’s methodology was fundamentally flawed in both its sampling and the questions employed.”
In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), there is a discussion wherein the Court determines that the survey evidence proffered by the defendant “had too many methodological flaws to be of any probative value.”
In Valador, Inc v. HTC Corporation, 1:16-cv-1162 – Dist. Court, E.D. VA (2017), the plaintiff alleged that the defendant violated its trademark on 3-D rendering software (“VIVE”) by marketing a virtual reality headset with a similar name (“HTC Vive”).
The plaintiff hired a consultant to support a likelihood of confusion claim who purported to be an expert in marketing research and conducting surveys, but who turned out to lack adequate qualifications and capabilities.
The survey results were deemed inadmissible when the Court determined that the expert was “not qualified to present his proffered opinions,” and found that the survey “(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… render the survey so unreliable as to be inadmissible.”
When you need to conduct a consumer survey as evidence in your trademark infringement case, hiring qualified experts, such as Keegan & Donato Consulting, will have a substantial impact on whether the Court deems your survey results admissible. Get in touch with us at (914) 967-9421 today to explore our full range of services.