Proving or disproving the likelihood of confusion with consumer surveys can be a challenge. It’s important to seek out consultants like Keegan & Donato Consulting that offer expertise in survey design and methodologies to ensure that you obtain valid and reliable results.

Keegan & Donato Consulting has extensive experience in the design, execution, and presentation of consumer surveys that have been admitted into evidence in state and federal courts, at arbitration, the NAB, and the TTAB. Principals Mark Keegan and Tony Donato also have extensive testimony experience.

We are a specialty research consultancy and are members of ESOMAR, the leading global association for market, social and opinion researchers, the International Trademark Association (INTA), and the American Marketing Association (AMA). Mr. Keegan is an AMA-designated Professional Certified Marketer.

Why Hire a Survey Expert?

When confronted with poorly designed, unscientific surveys, judges can be harsh and the evidence may be given little weight or partially or completed excluded.

In Black & Decker Corp. v. Positec USA Inc., 1:11-cv-5426, Dist. Court, N.D. Illinois, Eastern Division (2017), for example, flawed survey evidence resulted in the Court tossing out an earlier jury verdict with a $53.9 million award and ordering a new trial.

The Court determined that the likelihood of confusion survey proffered by the Plaintiff was “so informally designed and conducted that it fails key tests of professionalism and reliability” and should have been excluded from trial.

“Even if … the survey was not the sole evidence on likelihood of confusion in the trial record, it was the linchpin of Plaintiffs’ case on likelihood of confusion— an issue that was hotly contested at trial. Given that Plaintiffs presented no evidence that any consumers were actually confused about the origin of Defendants’ goods, there is a high probability that [the expert’s] flawed testimony unfairly influenced the jury’s verdict… and admission of the survey and [the expert’s] testimony about the survey was fundamentally unfair to Defendants.”

Our Survey Standards

Surveys in trademark matters are complex and must adhere to strict standards:

• The survey population must be properly chosen and defined and utilize a sample that accurately represents the population.
• The questions asked must be clear, concise and unambiguous.
• The data must be accurately collected and reported.
• The data must be analyzed against statistical principles.
• The survey process must be conducted with a goal of maintaining objectivity.

Keegan & Donato Consulting obtains survey samples from prominent marketing research companies that are top providers of survey sample in the U.S. and maintain multi-million-member online consumer panels.

Our goal is to obtain high quality information that is a representative sample of the targeted population, and we have stringent procedures in place to minimize potential biases in data collection.

Surveys designed and executed by Keegan & Donato Consulting can assist you with proving or disproving the likelihood of confusion and provide you with reliable empirical data about the key claims driving your intellectual property case. Call us today at (914) 967-9421 to learn how we can help.