Keegan & Donato Consulting is a specialty research firm that designs and executes consumer-based surveys for attorneys and their clients in cases involving false and misleading advertising and a wide variety of marketing and commercial litigation issues.
Principals Mark Keegan and Anthony Donato offer a combined 25 years of expertise in conducting consumer research studies in the context of intellectual property disputes. When your case involves a determination as to whether a given trademark or advertisement causes consumers to be confused or misled, we can help.
Our firm has been hired by top IP litigation firms across the nation, including Ropes & Gray LLP in Washington, DC, Giampolo Law Group in Philadelphia, Debevoise & Plimpton LLC in New York City, Cooley LLP in San Diego, and Girard Gibbs LLP in San Francisco.
We are members of ESOMAR, the leading global professional organization for market, social and opinion researchers, the International Trademark Association (INTA), and the American Marketing Association (AMA), and Mr. Keegan is an AMA-designated Professional Certified Marketer (PCM).
False Advertising under the Lanham Act
The Lanham Act, as codified in 15 U.S. Code §1125, is the statutory basis for most trademark claims. The false advertising section (commonly known as Section 43(a)) gives competitors a cause of action against rivals who engage in misleading advertising or labeling.
Issues raised in the Lanham Act are particularly 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. In fact, the resulting evidence can be quite persuasive.
Whereas there is nothing in the Lanham Act that requires litigants to introduce consumer surveys in false advertising disputes, a number of Lanham Act decisions have noted the absence of consumer survey evidence.
For example, in Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F.Supp. 583 (D.N.J.1985), the court noted that, “failure of a trademark owner to run a survey to support its claims of brand significance and/or likelihood of confusion, where it has the financial means of doing so, may give rise to the inference that the contents of the survey would be unfavorable, and may result in the court denying relief.”
If you plan to invoke the protections of the Lanham Act, do not overlook the value of incorporating a well-designed, scientifically sound consumer survey into your case strategy.
Methodologically Sound Surveys
Keegan & Donato Consulting considers methodological design the most critical aspect of designing consumer research studies. Our state-of-the art survey designs adhere to the established principles of survey design, which include:
- Rigorous and valid design that is probative of the relevant issues in the case;
- Selection of the appropriate universe and sample;
- Inclusion of representative, qualified respondents;
- Use of clear and concise questions that are not leading or ambiguous;
- Use of procedures to minimize potential biases in data collection; and
- Full analysis and reporting of survey data.
Employing a qualified consumer survey expert will have an impact on whether your survey results are deemed admissible. In Dardenne v. MoveOn.org Civil Action, CIV. A. 14-00150-SDD, 2014 WL 1364854, for example, the Court placed “little weight on the survey results for the reason that the survey’s methodology was fundamentally flawed in both its sampling and the questions employed.”
Keegan & Donato Consulting takes all necessary steps to ensure that our consumer research studies have a solid methodological foundation that can withstand the rigors of litigation. We have designed, executed, and critiqued hundreds of surveys that have been admitted into evidence in federal and state courts, before arbitration panels, the TTAB, the NAD, and other venues.
If your case calls for a survey regarding false or misleading advertising, get in touch with us at (914) 967-9421 to take advantage of our training, expertise, and data-gathering expertise.