When you’re staring at an opponent’s survey that looks polished and “court-ready,” it can feel a little intimidating. How to prepare a rebuttal report for trademark litigation is really about giving you a leg up and providing you with the information you need. Honestly, your job is not to design the perfect survey. Your job is to show the court, calmly and clearly, where the opponent’s survey expert went wrong.

Keegan & Donato Consulting has built an entire practice around exactly this kind of work, reviewing and rebutting surveys in trademark, trade dress, Lanham Act, and advertising cases across federal and state courts, the TTAB, NAD, and arbitration panels.

Here’s how a thoughtful rebuttal report comes together.

Start With the Legal Questions

Before you start confidence intervals and cross-tabs, zoom out. What is this survey actually being used to prove?

Common themes in trademark litigation include:

• Likelihood of confusion
• Strength of mark
• Secondary meaning or acquired distinctiveness
• Lanham Act consumer perception and understanding claims

Keegan & Donato starts a rebuttal by mapping the opponent’s survey to touch on these specific issues. If the survey doesn’t connect cleanly to the legal questions then that disconnect becomes part of the rebuttal story.

Examine the Universe and Screening

In most cases, the universe should be composed of likely purchasers for the products or services at issue. If the opponent’s survey pulls in respondents who would never realistically encounter the marks in the marketplace, the entire foundation is already shaky.

A rebuttal report will look closely at:

• How the universe was defined
• How respondents were screened in or out
• Determine if the screening actually identifies likely purchasers or instead only shows a broad slice of the general population.

Analyze Stimuli and Marketplace Proximity

Next, you look at what respondents actually saw. Did the opponent’s survey present the marks in a way that reflects marketplace proximity, or in a way that exaggerates or suppresses potential confusion?

A rebuttal report will typically address:

• If the visual or verbal stimuli resemble how likely purchasers encounter the marks in the real world
• Determine if important context was stripped away, added, or altered
• Figure out if control stimuli make sense for the methodology being used

Keegan & Donato does not rely on vague criticism. Instead, the firm points to specific choices in the survey design. They also explain how those choices can distort the results and cause things to become skewed.

Evaluate Questions, Controls, and Analysis

Once you understand the setup, you can take a close look at the methodology:

• Ask yourself, are the questions neutral, or do they steer respondents toward finding confusion, recognition, or a particular interpretation?
• Are the controls appropriate to the methodology and the claims at issue? Do they actually isolate the effect of the challenged mark or claim?
• Were respondents excluded properly? Were “don’t know” responses treated consistently? Are the reported percentages backed by what’s in the raw data?

Keegan & Donato’s rebuttal work focuses on these details, translating technical survey concepts into practical explanations of why a particular result is less reliable than it seems at first glance.

Organize the Rebuttal

A strong rebuttal report is not just a list of complaints, but a genuine narrative that is organized from start to finish.

Keegan & Donato typically organizes critiques around a few key themes, such as:

• The wrong universe: respondents are not likely purchasers
• Unrealistic presentation of marks and weak marketplace proximity
• Leading questions or flawed answer options
• Controls that do not match the methodology
• Overstated conclusions that stretch beyond what the data supports/

The goal is to make it easy for the court to see how these flaws, taken together, weaken or undermine the probative value of the opponent’s survey.

Support Deposition and Trial Strategy

A rebuttal report doesn’t live on its own. It becomes a roadmap for deposition and trial. Keegan & Donato often helps litigators turn methodological critiques into focused lines of questioning. Because the firm has worked on hundreds of surveys across a wide range of Lanham Act claims, it understands the kinds of questions that resonate with judges and juries.

Turning Flaws Into an Advantage

At the end of the day, how to prepare a rebuttal report for trademark litigation is about turning the weaknesses in an opponent’s survey into your strength. If you are facing survey evidence in a trademark case and need experienced survey experts to critique, explain, and rebut it, Keegan & Donato Consulting can help. To discuss your matter or learn more about rebuttal strategies for your case, call (914) 967-9421 today or reach out online to schedule a call.