Trademark cases can be complex and are often decided based on the quality of the evidence presented. A well-executed survey can play a significant role in your litigation, and Keegan & Donato Consulting can help.
Keegan & Donato Consulting, located in historic Rye, New York, is a specialty research consultancy that designs and executes consumer surveys for attorneys across the nation and their clients in the context of intellectual property disputes.
Principals Mark Keegan and Tony Donato have extensive strategic and analytical skills as well as 25+ years of combined expertise in designing, executing and critiquing consumer research studies in the context of litigation.
We have assisted IP litigation firms from coast to coast in developing effective case strategies, such as Debevoise & Plimpton LLP in New York City, Ropes & Gray LLP in Washington, DC, Pashman Stein in New Jersey, Blood Hurst & O’Reardon LLP in San Diego, and Giampolo Law Group in Philadelphia.
How a Survey Expert Can Help Your Case
Surveys are valuable tools in trademark litigation because they provide insight into actual consumer perceptions, often when no other scientific evidence is available, and may help you build a stronger case.
Consumer surveys can play a pivotal role in successfully resolving trademark disputes, but many are never admitted into evidence, primarily because they were poorly designed and lacked objectivity. The result is that they are given little weight and rendered useless as evidence.
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 caused the Court to toss out an earlier jury verdict and $53.9 million award and order 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.”
To avoid these pitfalls and satisfy judicial and adversarial scrutiny, Keegan & Donato Consulting follows survey design, execution and presentation best practices. Our consumer surveys direct objective, non-leading questions to an appropriate universe of consumers. We have procedures in place to minimize potential biases in data collection, and our services include a full analysis and reporting of survey data.
There are, of course, strategic reasons why you may decide to proceed without survey evidence. Regardless of the reasons, however, it can be hazardous to proceed without survey evidence that is designed and executed by trained independent experts using sound methodologies.
Presenting consumer survey evidence is not mandatory, but it is important in helping you build a stronger case in trademark infringement matters. Get in touch with the experts at Keegan & Donato Consulting at (914) 967-9421 to find out how we can help.