When you are engaged in IP litigation, consumer surveys can help you establish how consumers view your clients’ marks and the products and services with which those marks are associated.

Consumer research studies are commonly employed to prove likelihood of confusion, strength of mark, acquired distinctiveness, secondary meaning,  dilution, and other Lanham Act issues in the context of trademark and trade-dress litigation.

When survey data is collected, experts can interpret the facts and testify about them to a judge or jury. They can address unique questions or evidence that is central to the issues in your case and assist you with quantifying damages.

Keegan & Donato Consulting offers extensive experience in conducting consumer research studies. The surveys we have designed have been admitted into evidence in federal and state courts, at arbitration, and to the TTAB, the NAD, and other specialty venues. We have also testified extensively at deposition and at trial.

What We Do for Our Valued Clients

• Design, execute and present results of:
  • trademark litigation surveys;
  • false and deceptive advertising, consumer perception, and other types of marketing surveys;
• Critique and rebuttal of opposing experts’ studies and reports;
• Damages and forensic economic analyses;
• Expert witness testimony on consumer survey, marketing and economic issues;
• Advice on deposition and trial questioning of opposing experts

How Survey Flaws Can Damage Your Case

An overly broad survey that fails to address the key issues in a case, asks leading, suggestive or ambiguous questions, samples from the wrong geographic area, etc., even if based on an accepted standard methodology, may be deemed inadmissible or given little weight.

For example, in Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the plaintiff’s surveys were deemed inadmissible because the Court determined them to be unscientific and poorly constructed. The survey expert was also rejected as unqualified “to design a survey or to interpret survey results.”

In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), there is a lengthy discussion about the Court’s conclusion that survey evidence submitted by the defendant, “had too many methodological flaws to be of any probative value.”

At Keegan & Donato Consulting, we consider methodological design among the most important aspects of designing a consumer research study. We have conducted and critiqued hundreds of studies across industries ranging from designer apparel to high-end audio products and everything in between.

We obtain high-quality information from a representative sample of the targeted population and have strict procedures in place to minimize potential biases in data collection. Survey samples are obtained from prominent marketing research companies that maintain multi-million-member online consumer panels.

Hiring qualified survey experts, such as Keegan & Donato Consulting, will have a significant impact on whether the court deems your survey results admissible.

When your litigation calls for a reliable, methodologically sound consumer survey designed and executed by experts with extraordinary expertise, get in touch with Keegan & Donato Consulting at (914) 967-9421 to find out how we can help.