Once you discover the importance of survey evidence in trademark infringement cases, you will appreciate the extraordinary expertise of Keegan & Donato Consulting.
Mark Keegan and Tony Donato have extensive strategic and analytical skills and 25+ years of combined expertise in designing, executing and critiquing consumer research studies in the context of litigation.
Our nationwide services include these and other areas:
- State-of-the-art survey design and execution
- Full-service data gathering and reporting capabilities
- Damages analysis and forensic economic analysis
- Pilot studies and exploratory research
- Collaboration on complex commercial litigation issues
- Critique and rebuttal of opposing experts’ studies and reports
- Advice on questioning of opposing experts in deposition and at trial
- Expert witness testimony on consumer survey, marketing & economic issues
Surveys Can Be Valuable Tools in Trademark Litigation
Surveys are valuable because they provide insight into actual consumer perceptions, often when no other scientific evidence is available. They may help you build a stronger case.
There are, of course, strategic reasons why you may decide to proceed without survey evidence. Perhaps the client cannot afford to invest in a survey. Perhaps your pilot survey failed to produce adequate results. Or, perhaps the consumer survey your adversary presented is so flawed that you hope a rebuttal expert will be able to critique the results without having to conduct another survey.
Regardless of the reasons, it can be risky to proceed through your trademark infringement matter without survey evidence that has been designed and executed by trained independent experts using sound methodologies.
For example, in Valador, Inc v. HTC Corporation, 1:16-cv-1162 – Dist. Court, E.D. VA (2017), the plaintiff, a NASA contractor, alleged that the defendant, one of the world’s largest cell phone makers, violated its trademark on 3-D rendering software (“VIVE”) by marketing a virtual reality headset with a similar name (“HTC Vive”).
To support a likelihood of confusion claim, the plaintiff hired a consultant who claimed to be an expert in marketing, marketing research, and conducting market surveys, but whose qualifications and capabilities turned out to be insufficient.
The Court completely excluded the survey results, determining that the expert was “not qualified to present his proffered opinions,” and finding that the survey “(1) failed to evaluate the proper universe of respondents; (2) did not replicate market conditions; (3) neglected to use a control group; (4) eschewed the recognized methodologies for conducting trademark confusion surveys; and (5) asked improperly leading questions. These fundamental flaws, taken together, render the survey so unreliable as to be inadmissible.”
Keegan & Donato Consulting can advise you on the best approach to your trademark survey, help you collect feedback and gain important insight from your target markets, or provide you with an objective evaluation of an opposing expert’s survey research.
Get in touch with the experts at Keegan & Donato Consulting at (914) 967-9421 to learn more about the importance of consumer survey evidence in trademark infringement cases. We work on a fixed rate or hourly basis depending on the needs of each client and will help you design a reliable, methodologically sound consumer study that will meet the court’s requirements.