Consumer surveys designed and executed by Keegan & Donato Consulting can yield fact-based evidence and highly reliable data in support of your legal positions during trademark infringement litigation.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation.
Principals Mark Keegan and Tony Donato can provide you with technical and strategic advice; help you analyze the economic, financial and/or technical complexities of your case; help you determine suitable deposition questions to ask; help you prepare a testifying expert for deposition and trial; or critique the potential weaknesses in an adversary’s survey evidence in a rebuttal report.
Do You Need a Consumer Survey?
Although survey evidence is not required, courts tend to hold them in high regard and consider them to be a reliable method of showing likelihood of confusion in trademark infringement cases. Surveys can be particularly influential in the absence of other evidence.
If you question the necessity of conducting a consumer survey, consider Lanham Act decisions such as Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F.Supp. 583 (D.N.J.1985), wherein the Court commented on the absence of such survey evidence, noting that, “failure of a trademark owner to run a survey to support its claims of brand significance and/or likelihood of confusion, where it has the financial means of doing so, may give rise to the inference that the contents of the survey would be unfavorable, and may result in the court denying relief.”
Advantages of Hiring a Survey Expert
Courts place great weight on properly conducted, methodologically sound consumer surveys. It can be hazardous to rely on inferior or flawed survey evidence.
In the case of Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the Court, when confronted with unscientific and poorly constructed surveys, disregarded the plaintiff’s surveys in their entirety and rejected the survey expert as unqualified “to design a survey or to interpret survey results.”
In another example, Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), contains 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.”
Consequently, it is crucial to hire qualified survey experts, like Keegan & Donato Consulting, who are experienced in designing and executing consumer surveys that will stand up to judicial scrutiny.
Keegan & Donato Consulting has developed surveys for firms throughout the nation that manage some of the largest trademark portfolios in the world, such as Girard Gibbs LLP in San Francisco, Fox Rothschild LLP in New Jersey and Philadelphia, Hogan Lovells in Washington, DC, and Riemer & Braunstein LLP in Boston.
Our capabilities include state-of-the art survey designs that are probative of the relevant issues in each case, are capable of targeting specific consumer populations with appropriate universe selection and sampling frames, and feature cutting-edge rotation and randomization of hundreds of question types with customizable complex skip and display logic when appropriate.
When you need a consumer survey to support your legal strategy in a trademark dispute, or a different type of consumer research study, Keegan & Donato Consulting has the qualifications and expertise necessary to quickly deliver intelligence within a wide range of budgets. Get in touch with us today at (914) 967-9421 to find out how we can help.