The expert services of Keegan & Donato Consulting include consumer surveys and rebuttal reports for trademark infringement cases. No matter your budget or your needs, we can help.
Keegan & Donato Consulting, located in Rye, New York, is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients across the nation in the context of intellectual property disputes.
With over 25 years of combined experience, proven survey methodologies, and deep operational insight, principals Mark Keegan and Tony Donato have expertise on many topics in the areas of trademark and trade dress.
Should You Hire a Survey Expert?
Surveys are highly susceptible to criticism, and you can expect the courts to scrutinize them for methodological flaws. Sample selection issues, interviewer bias, and suggestive wording often cause judges to attribute little weight to a survey or deem some or all of the results inadmissible.
For this reason, we highly recommend hiring qualified survey experts. Keegan & Donato Consulting’s methodologically sound consumer research studies and expert testimony will meet the courts’ standards for design, execution, and analysis and serve as powerful evidence in your case.
We can also help you rebut an adversary’s survey evidence by providing you with guidance about possible flaws and weaknesses in the survey. Another service involves advising you on how to approach an opposing expert’s deposition with specific survey-related issues that can be addressed and areas of questioning about survey research in general. These services can be of remarkable value to your client.
Is a Trademark Survey Worth the Cost?
Courts can be harsh when confronted with poorly designed, unscientific surveys, and may give such evidence little weight or partially or completely exclude it. Consider the trial court’s post-trial ruling in the following case as a cautionary tale.
In Black & Decker Corp. v. Positec USA Inc., 1:11-cv-5426, Dist. Court, N.D. Illinois, Eastern Division (2017), flawed survey evidence caused the Court to toss out a previous trade dress infringement jury verdict and $54 million award in favor of the Plaintiff and order a new trial.
The Court concluded 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.”
Are Trademark Surveys Expensive?
Most of our consumer studies cost between $30,000 and $80,000 to complete, and $55,000 is the most typical cost. We work on a fixed-rate or hourly basis based on your needs and will work with you to design a survey that is both reliable and within your budget. We will always provide you with an estimate of project costs prior to engagement.
When you need a highly qualified expert with experience in trademark infringement cases, call Keegan & Donato Consulting at (914) 967-9421. We will help you design a reliable, methodologically sound consumer survey or rebuttal report to support your case.