When employing consumer surveys in trademark litigation, surveying the right people, or using the correct population, is an absolute must. As a specialty consumer research consultancy, trademark surveys conducted by Keegan & Donato Consulting are precisely written and adhere to accepted survey research standards.
Keegan & Donato Consulting designs and executes consumer survey research studies and collaborates on a wide range of marketing and complex commercial litigation issues.
About Consumer Surveys
The Lanham Act is the legal basis for most trademark claims. It is codified in 15 U.S. Code §1125. The issues raised are well-suited to testing through consumer surveys by addressing how consumers interpret—and misinterpret—symbols, names, and other marks used by businesses in commerce. The resulting evidence can be very persuasive.
A primary reason for using surveys in trademark litigation is to provide evidence of consumer perception about some or all of the issues before the Court. For the study to be relevant and useful to the judge or jury, attorneys and their experts must determine the demographics and qualities of groups of people among the public at large who should be surveyed.
When designed and executed correctly, consumer surveys can demonstrate whether there is any likelihood that a substantial number of ordinarily prudent buyers are likely to be misled or confused as to the source of the goods in question.
The relevant universe can be obtained by narrowing the people at large by the type of buyers involved, geographical area, purchasing habits, or other criteria. Under-inclusive surveys that do not include some part of the relevant population and over-inclusive surveys with more than the relevant population do not produce a proper factual basis for the results. When these flaws are significant, the Court may exclude these surveys from evidence, either partially or wholly.
In Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 118 (2d Cir. 1984), for example, plaintiff Universal Studios alleged that defendant Nintendo’s video game Donkey Kong was a trademark infringement of King Kong, the plot and characters of which Universal claimed as their own.
The plaintiff’s survey on consumer confusion was first excluded by the District Court because “[it] utilized an improper universe in that it was conducted among individuals who had already purchased or leased Donkey Kong machines rather than those who were contemplating a purchase or lease.” The District Court granted summary judgment to Nintendo on Universal’s Lanham Act claim. On appeal, the Circuit Court affirmed the judgment of the District Court.
Our surveys consist of objective, non-leading questions directed to an appropriate universe of consumers. Procedures are in place to minimize biases in data collection, and services include a complete analysis and reporting of survey data.
Our capabilities include state-of-the-art survey designs that confirm relevant issues in each case, are able to target specific consumer populations with appropriate sampling frames and universe selection, and feature cutting-edge rotation and randomization of hundreds of question types with customizable complex skip and display logic when applicable.
Keegan & Donato Consulting provides attorneys and their clients with an exceptional combination of analytical and strategic skills related to using consumer surveys in trademark litigation that are focused on using the correct population. Contact us at (914) 967-9421 to take advantage of our team’s extensive knowledge and expertise.