When you are involved in intellectual property litigation, conducting consumer research surveys can help you gather evidence to prove whether a trademark has established secondary meaning.
Principals Mark Keegan and Tony Donato offer a wide range of analytical and strategic skills in the area of IP litigation. We have collaborated with plaintiffs and defendants to support trademark infringement and trade dress litigation as well as cases involving business, marketing, and financial issues.
We offer 25+ years of experience in conducting methodologically sound consumer surveys. Our skillful, objective analysis will ensure the persuasiveness and admissibility of the results and help you develop a robust case or rebuttal strategy.
We are members of in the International Trademark Association (INTA), the American Marketing Association (AMA), the Association for Consumer Research (ACR), the American Association for Public Opinion Research (AAPOR), and ESOMAR, the leading global association for market, social, and opinion researchers, and we offer many other skills and tools that will help you strengthen your case.
What is Secondary Meaning?
Descriptive marks cannot ordinarily receive trademark protection unless they have acquired “secondary meaning” through advertising or exposure.
Secondary meaning occurs when significant numbers of consumers are presented with a mark that consists of words that have an ordinary meaning of their own and associate that mark with a particular supplier of goods or services.
One good example is the word “Apple.” The word primarily refers to a type of sweet, edible fruit, but many consumers also associate it with its second meaning, which is specific to a brand of computers, not just to computers in general.
Other examples include Band-Aid® for adhesive bandages and Xerox® for copy machines. Initially, these were all generically used descriptive words. However, after decades of use in the marketplace, they eventually achieved trademark status because the manufacturers proved that a link had been established in the minds of consumers – a secondary meaning – between the products and their sources.
Why Hire a Survey Expert?
A consumer survey can be a crucial factor in the Court’s assessment of your case, but it can be hazardous to proceed without well-designed and scientifically sound survey evidence, or it may be discredited and given little weight by the court or may be partially or completed excluded.
For example, in Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the Court deemed the plaintiff’s surveys inadmissible after determining them to be unscientific and poorly constructed. It also decided that the survey expert was unqualified “to design a survey or to interpret survey results.”
At Keegan & Donato Consulting, our team can help you solve your biggest litigation challenges with actionable insight gained from a consumer survey that is designed by highly qualified experts who can quickly deliver intelligence within a wide range of budgets.
Keegan & Donato Consulting consumer research surveys can help you establish secondary meaning, which is a crucial step in your trademark litigation. Get in touch today at (914) 967-9421 for help developing a robust case strategy.