Like a trademark, trade dress is protectable under the Lanham Act to prevent consumers from buying one product while believing it is a different product. Consumer surveys can help you determine if an alleged infringement is having a real-world impact on consumers.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation.
We have designed, executed, and critiqued a vast number of surveys that have been admitted into evidence by attorneys practicing in federal and state courts, before arbitration panels, the NAD, the TTAB, and other specialty venues.
Our specialties include:
- Trade Dress Analysis & Surveys
- Lanham Act Analysis & Surveys
- Acquired Distinctiveness Analysis & Surveys
- Likelihood of Confusion Analysis & Surveys
- Strength of Mark Analysis & Surveys
- Secondary Meaning Analysis & Surveys
- Consumer Perception Analysis & Surveys
- Consumer Understanding Studies
- Survey Critiques & Rebuttals
What is Trade Dress?
Trade dress generally refers to the distinctive appearance of a product’s packaging, including features such as size, shape, color(s), texture or graphics, but may also include the design and shape of the product itself.
In the case of a product, trade dress could be the distinctive packaging, the accompanying displays, or the product design itself. In the case of services, trade dress could be the décor of the place where the services are provided, e.g., the distinctive interior of a national chain restaurant or the design of the building.
An unregistered trade dress is entitled to protection under § 43(a) of the Lanham Act if it is distinctive, either inherently or through an acquired distinctiveness (or secondary meaning). A finding of secondary meaning essentially elevates a trademark’s status, opening the path to protections that may have previously been unavailable.
How a Consumer Survey May Help
Because direct evidence of actual consumer confusion is rarely available, courts often look to surveys as strong circumstantial evidence in their assessment of whether trade dress infringement has occurred.
Incorporating a consumer research study as part of your litigation can help you prove acquired distinctiveness and secondary meaning, and should be a primary consideration in developing case strategy.
Many consumer surveys, however, are found by the courts to contain significant methodological flaws, such as leading, suggestive or ambiguous questions, under-inclusive or over-inclusive sampling of the consumer universe, sampling from the wrong geographic area, and so on. These flaws can reduce or destroy the credibility of the survey.
For this reason, it is important to employ experts, such as Keegan & Donato Consulting. Our careful application of methodologically sound guidelines in the design, execution and analysis of surveys increases their accuracy and improves their chances of being accepted by courts.
Contact Keegan & Donato Consulting at (914) 967-9421 to find out how a consumer survey could help you achieve trade dress protection under the Lanham Act. We will work within your budget to deliver the survey results you need.