In trademark infringement cases, consumer surveys can play an important role in proving likelihood of confusion, secondary meaning, strength of mark, acquired distinctiveness, consumer perception and other issues, when other scientific evidence is simply not available.
It is important, however, to choose a qualified survey expert who will be able to withstand cross-examination and explain his or her survey methodology in a clear and concise manner.
Courts take care to verify whether the survey design or methodology was flawed in any way. Issues surrounding sample selection, bias, or suggestive wording may cause a judge to discount all or part of a survey, or to reject a survey expert altogether.
For example, in Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the plaintiff’s surveys were determined to be inadmissible because they were deemed unscientific and poorly constructed. The court also rejected the survey expert as unqualified “to design a survey or to interpret survey results” [see 45 F.Supp.3d 1167-1170].
In Dardenne v. MoveOn.org Civil Action, CIV. A. 14-00150-SDD, 2014 WL 1364854, for example, the Court placed “little weight on the survey results for the reason that the survey’s methodology was fundamentally flawed in both its sampling and the questions employed.”
Why Choose Keegan & Donato Consulting
Keegan & Donato Consulting has designed and executed hundreds of methodologically sound consumer survey research studies in many different industries and collaborated on a wide range of marketing and complex commercial litigation issues, including damages analysis, forensic economic analysis, and related areas.
Principals Mark Keegan and Anthony Donato have over 25 years of combined experience and education in consumer-based survey research and data analysis, and follow a solid methodological foundation in survey design, execution and presentation.
We have been engaged by leading IP litigation firms across the nation, such as Day Pitney LLP in New York City, Giampolo Law Group in Philadelphia, Girard Gibbs LLP in San Francisco, and Arent Fox in Washington, DC, to help them navigate the trademark infringement cases their clients face.
Keegan & Donato Consulting specializes in a wide range of trademark and trade dress surveys and analyses, including (but not limited to):
- Likelihood of Confusion – Surveys are commonly used to assess whether or not consumers are confused by a party’s use of a contested mark. We measure likelihood of confusion with both standard survey designs and innovative custom surveys.
- Strength of Mark – Distinctive marks are protected, and the levels of legal protection are directly linked to the strength of the mark. Consider a survey that measures consumer reaction to the mark and demonstrates the level of consumer familiarity with your client’s brand.
- Secondary Meaning – Proving secondary meaning can be a challenge. We can help strengthen your case strategy by targeting relevant consumers in your client’s market and evaluating whether they associate a contested mark with a single or multiple sources.
- Acquired Distinctiveness – Consumer surveys can help determine whether consumers associate a mark with a certain product and whether the mark is distinctive enough not to cause confusion about the origin of goods or services associated with it.
If you believe a consumer survey could play a vital role in your trademark infringement case, get in touch with Keegan & Donato Consulting at (914) 967-9421 to take advantage of our training, expertise, and data-gathering expertise.