The Lanham Act is the statutory basis for most trademark claims, and the issues raised are particularly well-suited to testing through consumer research surveys.

The Lanham Act is codified in 15 U.S. Code §1125. Also known as the Trademark Act, the law prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising. It also sets out the remedies that can be sought when a trademark is infringed.

The purpose of the Lanham Act is to protect the trademark owner from trademark infringement and unfair competition, and the public from confusion and inaccurate information and to help consumers identify the source of particular goods or services. The central element of trademark infringement is “likelihood of confusion.”

Value of Consumer Surveys

Consumer confusion, dilution, false designation of origin, trade dress infringement, false advertising, and other Lanham Act issues can harm your product’s reputation and sales, inflicting short- and long-term damage. A consumer survey can provide empirical evidence to show that an alleged trademark infringement is having a real world impact on consumers.

Survey evidence can be a persuasive component of your overall case strategy, but it is crucial to employ experienced survey experts, such as Keegan & Donato Consulting, who can document and support the choice of questions, select the right universe and sample, minimize the possibility or appearance of bias, and accurately report the data gathered.

In Dardenne v. MoveOn.org Civil Action, CIV. A. 14-00150-SDD, 2014 WL 1364854, 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.”

In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), there is a lengthy discussion about why the Court determined that survey evidence submitted by the defendant, “Had too many methodological flaws to be of any probative value.”

To avoid the hazards of relying on inferior or flawed consumer survey evidence, consider hiring principals Mark Keegan and Anthony Donato who offer clients a combined 25 years of proven survey methodologies, deep operational insight and broad industry experience.

Our Consumer Survey Expertise

Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced firms in the field of trademark litigation.  We utilize classic survey designs in addition to innovative custom designs to meet our clients’ needs.

We program our research studies using an industry-leading online survey software platform which aids us in the execution of advanced survey designs, including:

• Ability to target specific populations
• Balanced, representative panels
• Real-time survey results
• Hundreds of question types and formats
• Advanced question rotation and randomization
• Customizable complex skip and display logic
• Advanced quota building
• Advanced screening capabilities
• Audio, video and image capabilities
• Graphic design capabilities

Keegan & Donato Consulting has been engaged by leading IP litigators across the nation, such as Kirkland & Ellis LLP in Chicago and Washington, DC, Schepisi & McLaughlin, PA in New Jersey, Cooley LLP in San Diego, and Day Pitney LLP in New York City.

Our consumer research surveys have been successfully admitted into evidence in state and federal courts, at arbitration, and to the TTAB.  We also have extensive testimony experience.

Get in touch with the experts at Keegan & Donato Consulting at (914) 967-9421. We will work within your budget to deliver the Lanham Act survey results you need.