Do you have questions about the value of consumer surveys in trademark or trade dress infringement litigation? Keegan & Donato Consulting can guide you through the process and help you develop a robust case strategy.
Keegan & Donato Consulting, located in Rye, New York, serves clients across the nation. We work on behalf of both plaintiffs and defendants to provide research, analysis, affidavits, declarations, expert reports, and rebuttal reports as needed in support of trademark infringement and trade-dress litigation, and have collaborated extensively on cases involving a wide range of marketing, business and financial issues.
How a Survey Can Strengthen Your Case
When survey data is collected, experts can interpret the facts and testify about them to a judge or jury. They can address unique questions or evidence that is central to the issues in your case and assist you with quantifying damages.
Our firm specializes in a wide range of intellectual property issues, including:
- Likelihood of Confusion –We measure likelihood of confusion through classic survey designs and by crafting innovative custom surveys to meet our clients’ needs. We have designed and critiqued hundreds of likelihood of confusion studies across a broad range of industries for cases in federal court, state court, arbitration hearings, the TTAB, the NAD, and other specialty venues.
- Strength of Mark –Distinctive and strong marks are granted greater protection by the courts because they identify the source of a particular product or service. Consumer surveys can yield reliable evidence of likelihood of confusion among consumers in trademark infringement cases.
- Secondary Meaning –Some marks are not inherently distinctive and are protected only if they have acquired “secondary meaning.” Proving secondary meaning can be a crucial step in trademark litigation. Keegan & Donato Consulting can design a study to target relevant consumers in your client’s market and determine how these consumers perceive your client’s brand.
- Acquired Distinctiveness– Descriptive marks and marks that are geographically descriptive, such as Hawaiian Fruit Punch, may be protectable if they have achieved acquired distinctiveness. Survey evidence can demonstrate the meaning that a descriptive term has in the marketplace. Keegan & Donato Consulting offers extensive experience in conducting acquired distinctiveness surveys.
- Lanham Act Claims – The Lanham Act prohibits trademark infringement, trademark dilution, and false advertising. A well-designed consumer research study can provide empirical evidence on the issue of whether an alleged trademark infringement is having a real-world impact on consumers.
Is the Survey Expert Qualified?
Rule 702 of the Federal Rules of Evidence requires experts to have scientific, technical, or other specialized knowledge that will help the court understand the evidence.
An overly broad survey that fails to address the key issues in a case, asks leading, suggestive or ambiguous questions, samples from the wrong geographic area, etc., even if based on an accepted standard methodology, may be deemed inadmissible or given little weight.
In Pinterest, Inc. v. Pintrips, Inc., Case No. 13-cv-04608-HSG, Dist. Court, N.D. California (2015), for example, the plaintiff introduced two surveys to support its claim of consumer confusion over the defendant’s use of the word “pin.” The Court determined that “fatal defects in the design of each survey render their results meaningless to the resolution of this lawsuit.”
Employing a qualified survey expert, such as Keegan & Donato Consulting, will have a significant impact on whether the court deems your survey results admissible.
For answers to your questions about how a consumer survey may bolster your intellectual property litigation, contact Keegan & Donato Consulting at (914) 967-9421 to take advantage of our training, expertise, and data-gathering capabilities.