Keegan & Donato Consulting is a specialty research consultancy that can advise you on the best approach to consumer surveys for trademark litigation and ensure that your survey evidence will stand up to judicial scrutiny.
Keegan & Donato Consulting has extensive experience in the design, execution, and presentation of consumer surveys that have been admitted into evidence in state and federal courts, at arbitration, the NAB, and the TTAB. Principals Mark Keegan and Tony Donato also have extensive testimony experience.
Take Advantage of This Valuable Tool
Surveys are valuable because they provide insight into what consumers are actually thinking, often when no other scientific evidence is available. A methodologically sound survey may help you build a stronger case.
There may be reasons why you may decide to proceed without survey evidence. Perhaps your pilot survey did not produce adequate results. Maybe the client cannot afford the cost. Or, maybe the consumer survey your adversary submitted is so flawed that you hope a rebuttal expert can critique the results without having to conduct another survey.
Nevertheless, it can be risky to proceed through your trademark infringement case without survey evidence that has been designed and executed by trained independent experts using sound methodologies.
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), for example, the court deemed the plaintiff’s surveys inadmissible after determining them to be unscientific and poorly constructed. The court also rejected the survey expert as unqualified “to design a survey or to interpret survey results” [see 45 F.Supp.3d 1167-1170].
This means it’s imperative for consumer surveys to be well-designed and scientifically sound, or they may be accorded little weight by the court or partially or completed excluded.
Our Survey Specialties
Likelihood of confusion is a common issue that is often addressed with a consumer survey to provide direct scientific evidence of the degree to which consumers believe there is a relationship between the plaintiff’s and the defendant’s marks, brands, or products.
Secondary meaning arises when consumers associate an otherwise descriptive word, name, slogan, symbol, or design with a single source. This is a powerful indication that a mark is no longer descriptive but has risen in the minds of consumers to become a distinctive identifier of a specific brand. Secondary meaning can be measured through a consumer survey.
Acquired distinctiveness can be measured with a consumer survey. When a mark acquires distinctiveness, it is capable of serving as a trademark by associating in the mind of consumers with a specific source of goods and services. This is usually a result of extensive advertising and widespread commercial use.
Lanham Act Claims are particularly well-suited to testing through consumer surveys. A well-designed survey can provide empirical evidence on the issue of whether an alleged trademark infringement is having a real-world impact on consumers.
Contact the experts at Keegan & Donato Consulting at (914) 967-9421 to learn more about consumer surveys for trademark litigation. We work on a fixed rate or hourly basis depending on each client’s needs and will help you design a reliable, methodologically sound consumer study that will meet the court’s requirements.