Likelihood of confusion is the central element of trademark infringement. When infringement is alleged, a survey can be used to persuade the court that consumer confusion between exists (or does not exist). Keegan & Donato Consulting specializes in state-of-the-art survey design and execution.
Keegan & Donato Consulting is a specialty research consultancy and a leader in the field of trademark litigation. The firm provides expert research, analysis, affidavits, and reports on behalf of plaintiffs and defendants throughout the nation.
Principals 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.
Do You Need a Likelihood of Confusion Survey?
A well-designed survey can provide direct scientific evidence of the extent to which consumers believe there is a relationship between the plaintiff’s and the defendant’s mark, brand, or product.
You do not need survey evidence to prevail on a claim of trademark infringement, but courts often give such evidence substantial weight, as illustrated in the following example.
In Tiffany and Co. v. Costco Wholesale Corp., 127 F.Supp.3d 250 –District Court, S.D. New York (2015), the iconic jeweler sued Costco for trademark infringement over its use of the “Tiffany” trademark to sell diamond wedding rings.
The defendant argued that using the name Tiffany merely to describe the style of the ring (i.e., “Tiffany” setting) did not confuse consumers into thinking that Tiffany & Co. was the source of the ring.
Tiffany & Co. proffered a consumer confusion survey which determined that prospective purchasers of wedding rings at Costco were likely confused into believing that Tiffany & Co. was the source of the rings.
Costco attacked the survey expert’s methods but did not offer its own survey or any other evidence of lack of consumer confusion. Without a competing survey, “Tiffany’s evidence of consumer confusion stands unrebutted.” The Court granted Tiffany’s motion for summary judgment.
Our Survey Design Best Practices
Some of the industry best practices that Keegan & Donato Consulting builds into the firm’s survey designs include:
- Appropriate universe selection and sampling frame;
- Inclusion of representative, qualified respondents;
- Use of procedures to minimize potential biases in data collection;
- Use of objective, non-leading questions;
- Use of procedures to reduce guessing among respondents; and
- Full analysis and reporting of survey data.
We employ classic survey designs and will develop innovative custom survey designs to meet the needs of each individual case. Our industry-leading online survey software platform facilitates the programming and execution of advanced survey designs, including complex skip logic and advanced rotation and randomization of questions, answer options, and stimuli.
Keegan & Donato Consulting will work within your budget to design an appropriate likelihood of confusion survey and deliver the results you need. Get in touch with us today at (914) 967-9421.