Keegan & Donato Consulting assists attorneys and their clients in effectively utilizing consumer surveys as evidence in their trademark infringement cases.
Keegan & Donato Consulting is a specialty research consultancy located in beautiful Rye, New York. We provide a comprehensive suite of services, including consulting on litigation strategy for both plaintiff and defendant clients across the nation, consumer research studies, expert reports, testimony in trademark and trade-dress litigation, testimony at deposition and/or trial, and rebuttal of opposing parties’ surveys when applicable.
With more than 25 years of combined experience in the field, principals Mark Keegan and Tony Donato have developed surveys for and collaborated with firms that manage some of the largest trademark portfolios in the world, such as Giampolo Law Group in Philadelphia, Schepisi & McLaughlin, P.A. in New Jersey, Hogan Lovells in Washington, DC, Arnold & Porter LLP in San Francisco, and Riemer & Braunstein LLP in Boston.
What Trademark Surveys Can Measure
Surveys can be extremely useful in your attempt to measure issues related to intellectual property matters and provide evidence of infringement.
Likelihood of confusion is a common issue addressed by consumer survey research. A well-designed survey can provide direct scientific evidence of the extent to which consumers believe there is a relationship between the plaintiff’s and the defendant’s mark, brand, or product.
Secondary meaning occurs when consumers associate an otherwise descriptive mark with a single source. It can be measured by means of a consumer research study and may provide a strong indication that a mark is no longer descriptive and has become a distinctive identifier of a brand in the minds of consumers.
Dilution occurs when an infringing party uses a famous mark in a way that tarnishes the mark’s reputation for quality or dilutes its strength by blurring its distinctiveness. Consumer recognition of a famous mark can be measured directly by a survey.
Acquired distinctiveness can be measured with consumer survey research. When a mark acquires distinctiveness, it becomes capable of serving as a trademark by associating in the mind of consumers with a particular source of goods and services. This usually happens as a result of extensive advertising and widespread commercial use.
Trade dress, like a trademark, is protectable under the Lanham Act. Conducting a consumer survey can help you gather the evidence to prove whether the trade dress in question has established secondary meaning or is likely to cause confusion in the marketplace.
Strength of mark has a bearing on the legal protections available to a mark holder. In general, fanciful, arbitrary, and suggestive terms are considered inherently distinctive and are afforded various trademark protections. Descriptive marks are unlikely to achieve trademark protection because they lack sufficient distinction to be associated by consumers with one source.
False advertising is well-suited to testing through consumer research by addressing the ways in which consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce.
The expert services of consumer survey companies like Keegan & Donato Consulting can help you effectively utilize surveys as evidence in your trademark infringement cases. Take advantage of our extraordinary expertise by contacting Keegan & Donato Consulting today at (914) 967-9421.
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