When conducting a trademark survey to prove or disprove trademark infringement or likelihood of confusion, survey design, quality control, methodology, and execution must be considered.
About Keegan & Donato Consulting
Keegan & Donato Consulting, located in historic Rye, New York, is a specialty research consultancy that designs and executes consumer surveys for attorneys across the nation and their clients in the context of intellectual property disputes.
Principals Mark Keegan and Tony Donato rely on 25+ years of proven survey methodologies, deep operational insight, and extensive industry experience, to provide expert research, analysis, affidavits and reports on behalf of plaintiffs and defendants in support of trademark infringement litigation.
We have been engaged by leading IP litigators across the nation, such as SmithAmundsen LLC in Chicago, Irell & Manella LLP in Los Angeles, Wiley Rein LLP in Washington, DC, Schepisi & McLaughlin, P.A. in New Jersey, and Cooley LLP in San Diego.
Avoiding Survey Methodology Problems
A consumer survey for the purposes of a trademark matter is a systematic way to collect information from (a sample of) a target population of consumers for the purposes of assessing the opinions and expectations of the larger population of which those consumers are members.
The target population typically includes the prospective purchasers of a product or product line in question or users of a particular service as well as past and present customers and users.
Surveys in trademark matters are complex and required to meet strict standards:
- The survey population must be properly chosen and defined and utilize a sample that accurately represents the population.
- The questions asked must be clear, concise and unambiguous.
- The data must be accurately collected and reported.
- The data must be analyzed against statistical principles.
- The survey process must be conducted with a goal of maintaining objectivity.
One of the most important steps in the process is to target the relevant survey population. Courts disqualify surveys more often for this single factor than any other factor. Courts require accurate, real-world data. Poor designs and methodological flaws can result in partial or full exclusion of survey evidence from a case.
In Parks, LLC v. Tyson Foods, Inc., 2015 WL 4545408, No. 5:15–cv–00946 (E.D. PA. May 10, 2016), for example, plaintiff Parks claimed that the defendant’s “Park’s Finest” sausages and hot dogs infringed on its “Ball Park Franks” brand.
The Court was critical of methodological flaws in a consumer survey submitted by Parks. It “was not probative of secondary meaning” and “was not directed at the appropriate universe of consumers.” Tyson Foods, on the other hand, introduced a consumer survey that showed little evidence of consumer confusion between its Park’s Finest sausages and Parks brand sausages. Tyson Foods prevailed.
Keegan & Donato Consulting obtains survey samples from prominent marketing research companies that are top providers of survey sample in the U.S. and maintain multi-million-member online consumer panels.
Our goal is to obtain high quality information that is a representative sample of the targeted population, and we have stringent procedures in place to minimize potential biases in data collection.
Keegan & Donato Consulting’s trademark survey control methodology will stand up to judicial scrutiny. Get in touch with us today at (914) 967-9421. We can work within your budget to deliver the survey evidence you need.