Often measuring loss of brand distinctiveness in litigation is the missing piece between a compelling story and actual proof. Everyone may agree that a mark used to be strong and unique. However, the key litigation question is: what do likely purchasers think now? Has the mark stayed distinctive, or has its identity taken a hit?

Keegan & Donato Consulting focuses on exactly that problem. With about 40 years of combined experience designing and critiquing litigation surveys, our survey experts help attorneys move beyond anecdotes and marketing decks to empirical evidence about how distinctive a brand really is today.

What “Loss of Distinctiveness” Looks Like

Loss of brand distinctiveness shows up in a few familiar litigation scenarios that you might be familiar with: A once-unique mark starts to blend into a crowd of similar terms.

• A descriptive mark may never have fully crossed the line into secondary meaning.
• A famous mark faces a dilution challenge because new uses begin to blur its identity.

In each of these situations, the law is really asking: Do likely purchasers still see this mark as a strong indicator of a single source? Keegan & Donato uses survey evidence to answer that question in a way courts can understand and rely on.

Strength-of-Mark Surveys

A key tool for measuring loss of brand distinctiveness in litigation is the strength-of-mark survey. These studies explore how recognizable and unique a mark is among likely purchasers in the marketplace that matters the most. If a mark that was once strongly associated with a single source is now barely recognized or is linked to several different sources, then a change has occurred.

That shift can support arguments about weakened distinctiveness.

Secondary Meaning, Acquired Distinctiveness, and Erosion 

For descriptive marks, distinctiveness often hinges on secondary meaning or acquired distinctiveness. Those concepts are about association. When you compare this kind of evidence over time or against other marketplace signals, it can show that a mark has never achieved strong distinctiveness. In some scenarios, its distinctiveness has slipped as competitors have adopted similar language or designs.

Dilution and the Famous Mark Question 

For truly famous marks, loss of distinctiveness often shows up in the context of dilution claims. The concern is that new uses may blur the identity of a famous mark or tarnish its image, even if there is no traditional likelihood of confusion.

Keegan & Donato’s survey experts customizes these designs so that respondents encounter the marks within marketplace proximity. They can see them in digital and physical environments.

Turning Distinctiveness Data Into Litigation Strategy

At the end of the day, measuring loss of brand distinctiveness in litigation is about turning shifting consumer perception into evidence you can build a case around. Keegan & Donato can help you measure that change and explain it clearly to the court. To talk about a matter involving measuring loss of brand distinctiveness in litigation, call (914) 967-9421 today to connect with a survey expert or contact us online to schedule a call.