One of the key challenges in trade dress infringement cases is establishing the likelihood of consumer confusion. Rebuttal surveys are a powerful tool that can be used to assess and challenge those claims. Reach out to Keegan & Donato Consulting to learn how to critique trade dress infringement cases with rebuttal surveys.
Keegan & Donato Consulting is a specialty research consultancy based in beautiful Rye, New York. Principals Mark Keegan and Tony Donato offer more than 30 years of combined experience and education in consumer-based survey research and data analysis in the context of intellectual property disputes.
Our vast experience includes conducting consumer-based surveys to test a wide variety of Lanham Act claims, such as trade dress, likelihood of confusion, strength of mark, secondary meaning, acquired distinctiveness, false and deceptive advertising, consumer perception, and expert witness testimony on consumer survey, marketing, and economic issues.
We provide a complete suite of services, including consulting on litigation strategy for plaintiff and defendant clients, consumer research studies, expert reports, testimony in trademark and trade-dress litigation, testimony at deposition and/or trial, and rebuttal and critique of opposing parties’ surveys when applicable.
What Are Rebuttal Surveys?
Rebuttal surveys are surveys that are designed to gather data that can be used to challenge claims made by an opposing party in a legal dispute.
In the context of trade dress infringement cases, rebuttal surveys can be used to assess whether using a particular design or packaging is likely to confuse consumers. By gathering data from consumers who have seen and interacted with the product or service, rebuttal surveys can provide a more accurate assessment of the likelihood of confusion than traditional legal analysis alone.
The first step is to carefully review the claims made by the opposing party and identify the specific elements of the product or service design or packaging that are alleged to be infringing. Once these elements have been identified, we can design a survey that assesses consumer perceptions of those specific elements.
When designing a rebuttal survey, it’s essential to use a statistically representative sample of consumers who are likely to be the target audience for the product or service in question. We design the survey to gather data on a range of factors, including consumer perceptions of the product or service, the likelihood of confusion between the alleged infringing product or service and the original product or service, and the reasons why consumers believe there is or is not a likelihood of confusion.
How a Rebuttal Survey May Help
There have been several court cases where rebuttal surveys have played a crucial role in the court’s decision. One such case is Pom Wonderful LLC v. The Coca-Cola Company (2016), where Pom Wonderful sued Coca-Cola for trade dress infringement related to the labeling and marketing of a pomegranate-blueberry juice blend. In part because of the results of a rebuttal survey conducted by Coca-Cola, the court ultimately found that Coca-Cola’s labeling and marketing were not likely to confuse consumers,
When you need to know how to critique trade dress infringement cases with rebuttal surveys, Keegan & Donato Consulting can advise you on the best approach. Get in touch with us today at (914) 967-9421 to learn more.