Issues addressed in the Lanham Act, such as false or deceptive advertising, are particularly well-suited to testing through consumer surveys. Find out how Keegan & Donato Consulting can design a consumer research study to strengthen your Lanham Act case.
Keegan & Donato Consulting provides nationwide service to attorneys involved in proving or refuting allegations of deceptive advertising. We have been engaged by leading firms, such as Blank Rome LLP in Philadelphia, Notaro, Michalos & Zaccaria PC in New Jersey, Arnold Porter LLP in San Francisco, and Morgan, Lewis & Bockius LLP in Boston.
Our consumer surveys have been submitted to federal and state courts, arbitration panels, the Trademark Trial and Appeal Board (TTAB), the NAD, and other specialty venues, to assess the impact of allegedly deceptive messages across a variety of media types and a broad range of products and industries.
Strategy and Methodology
The false advertising provisions of the Lanham Act are used by businesses to seek redress for deceptive advertising by competitors. When the advertising is not literally false or misleading, consumer surveys can be of enormous value in determining the likelihood and percentage of deception in a relevant consumer universe. The survey results can be used as evidence to bolster your case.
To withstand the rigors of litigation, surveys must have a solid methodological foundation and adhere to established principles of consumer survey research. Keegan & Donato Consulting follows industry best practices in our field, and relies upon our extensive education and combined 25 years of experience in conducting and critiquing consumer surveys.
Our consumer research studies address the issue of deceptive advertising from a scientific perspective, providing empirical data regarding the extent to which consumers believe the brands at issue emanate from the same source or are somehow related, and whether their responses to advertising, labeling, packaging and other allegedly deceptive communications affect their purchase decisions.
Our services include:
- Pre-survey consulting
- Exploratory research
- Survey design, execution, and full analysis and reporting
- Critique of reports from opposing experts
- Assistance with deposition and trial questioning of expert witnesses
- Rebuttal of survey evidence from opposing experts
- Expert witness testimony
The value of a highly qualified survey expert is illustrated in Parks, LLC v. Tyson Foods, Inc. et al, No. 5:15-cv-00946 – Dist. Court, E.D. Pennsylvania (2015).
The plaintiff in this trademark and false advertising dispute argued that defendants Tyson Foods, Inc. and Hillshire Brands Company, owners of the “Ball Park” brand of hot dogs, had “infringed upon its “Parks” trademark and engaged in deceptive advertising and other unlawful conduct” by using the name “Park’s Finest” on its products.
The plaintiff produced a single consumer survey to support both its false advertising claim and its trademark infringement claim. The court determined that there were methodological flaws in the survey that rendered it “unsuitable for supporting a claim of false advertising.” The survey failed to assess the messaging communicated by the defendant’s packaging; it failed to assess whether a consumer would have been deceived by the messaging; and it was not directed at the appropriate universe of consumers.
A survey conducted by the defendants, which the court observed was “not without some flaws of its own,” generally followed the appropriate methodology for testing a claim of false advertising.
If you want to avoid the methodological pitfalls that so often afflict deceptive advertising surveys, take advantage of the extraordinary expertise of Keegan & Donato Consulting by contacting us today at (914) 967-9421.