At its core, survey-based evidence strategies for trademark enforcement come down to one practical question: what do likely purchasers actually think when they encounter the parties’ marks in the marketplace? Courts give a lot of weight to that answer, which is why methodologically sound consumer surveys have become a central tool for litigators working on likelihood of confusion, secondary meaning, strength of mark, and other Lanham Act issues.

Keegan & Donato Consulting is built around that intersection of law, marketing, and consumer research. With roughly 40 years of combined experience and hundreds of litigation surveys designed, executed, and critiqued across federal and state courts, arbitration panels, and the TTAB, our survey experts focus on real marketplace behavior rather than abstract theory.

Trademark Enforcement Starts With the Right Questions

Survey work for trademark enforcement is never “one size fits all.” At Keegan & Donato’s our survey experts begin with the specific legal questions you need to answer. We focus on the industry context your clients actually compete in.

For enforcement matters, that often includes:

• Likelihood of confusion: Are likely purchasers misperceiving source, sponsorship, or affiliation when they encounter the challenged mark within marketplace proximity?
• Strength of mark and fame: How distinctive or well-known is the asserted mark among relevant likely purchasers?
• Secondary meaning and acquired distinctiveness: Has a descriptive term, product design, or color come to identify a single source?
• Lanham Act and related claims: How do likely purchasers perceive claims on packaging, websites, or advertising? Are they misled or left with a false impression?

Instead of forcing a case into a canned survey format, we work to customize the approach so that respondents see brands and claims in ways that mirror actual marketplace conditions.

Likelihood of Confusion

Likelihood of confusion is the issue Keegan & Donato is contacted about most often. Our surveys use an experimental test vs. control design to deliver empirical data on how likely purchasers perceive the relationship between the parties’ marks.

A confusion-focused design will typically include the following:

• Define a universe of respondents that matches the likely purchasers for the goods or services at issue.
• Show stimuli that accurately reflect how marks appear within marketplace proximity, such as online results, ads, or in-store presentations, rather than contrived side-by-side comparisons.
• Use a control that is appropriate to the methodology. It helps to isolate the effect of the challenged elements without introducing unnecessary complexity.
• Ask clear, neutral questions that reveal if the respondents see the brands as coming from the same source, being affiliated, or being sponsored in some way.

The result is data that can either support an enforcement action or highlight weaknesses before a client commits to costly litigation.

Beyond Confusion: Strength, Secondary Meaning, and Lanham Act Claims

Trademark enforcement often turns on more than confusion alone. At Keegan & Donato, we designs surveys to address a range of related issues, such as the following:

• Strength of mark: Surveys are often used to measure awareness and distinctiveness. They help to show that a mark is either strong, such as supporting broader enforcement or weaker than claimed.
• Secondary meaning / acquired distinctiveness: For descriptive terms, product designs, colors, or trade dress, surveys can determine if likely purchasers associate these elements with a single source, which is key to enforcement.
• Consumer perception & understanding: When claims or presentations are at issue under the Lanham Act, surveys can explore how likely purchasers interpret marketing messages, labeling, websites, and disclaimers. They help answer the questions: Do they take away the message your opponent denies communicating? Are disclaimers actually noticed and understood?

Because the firm works across industries, from apparel to technology to consumer packaged goods, every survey design is adjusted to reflect how people actually shop that category, not just how they might answer in a vacuum.

Putting Survey-Based Evidence Strategies for Trademark Enforcement Into Practice

In the end, survey-based evidence strategies for trademark enforcement are about converting marketplace perception into clear, credible evidence that courts and tribunals can rely on. If you are considering a trademark enforcement action or need to address an opponent’s survey, Keegan & Donato’s survey experts can help you design, execute, and rebut survey evidence that fits your case. To talk through your matter or explore next steps, call (914) 967-9421 or contact us online today and put experienced, litigation-tested survey-based strategies to work for your trademark enforcement needs.