Proving trademark infringement involves demonstrating that someone has used a mark that is identical or confusingly similar to your registered trademark and that the use has caused confusion among consumers regarding the source or origin of the goods or services associated with the mark. Consider Keegan & Donato Consulting for our strong survey methodologies.
We specialize in a wide range of trademark and trade-dress analyses and surveys, including:
- Likelihood of Confusion
- Secondary Meaning
- Strength of Mark
- Acquired Distinctiveness
- Lanham Act Claims
We have extraordinary expertise in the field of consumer surveys, and our work has been admitted into evidence in state and federal courts, at arbitration, the NAD, and the TTAB. Principals Mark Keegan and Tony Donato also have extensive testimony experience.
Our Survey Methodologies
At Keegan & Donato Consulting, we recognize that the success of a consumer survey for litigation hinges upon a solid methodological foundation. Unlike in academic settings where flexibility is often afforded, the stakes are higher in our industry as even minor methodological errors can have catastrophic consequences for survey experts, potentially resulting in their exclusion from testifying in a case. Therefore, we consider methodological design as one of the most critical components when developing a consumer research study.
With our extensive education and 30 years of combined experience in conducting and critiquing consumer survey research, we possess the expertise necessary to craft studies that avoid common methodological pitfalls often encountered by competing research studies. We adhere to established principles of consumer survey research outlined by experts in our field, including:
- Appropriate universe selection and sampling frame;
- Rigorous and valid survey design that is probative of the relevant issues in the case;
- Inclusion of representative, qualified respondents;
- Use of procedures to minimize potential biases in data collection;
- Usage of objective, non-leading questions;
- Use of strategies to reduce guessing among respondents; and
- Full analysis and reporting of survey data.
We utilize an industry-leading online survey software platform that enables the programming and execution of advanced survey designs, such as complex skip logic and advanced rotation and randomization of questions, answer options, and stimuli. We implement these features whenever necessary.
To ensure the highest quality sample, we obtain our survey sample from reputable marketing research companies that maintain large online consumer panels. These companies are among the top providers of survey samples in the United States and are regularly utilized by prominent marketing research firms.
By implementing these practices, we strive to develop methodological designs that can withstand the rigorous scrutiny of litigation.
How a Qualified Expert Can Help
Trademark surveys are highly vulnerable to criticism. Courts may discount all or part of a survey if it has a flawed design or methodology or was conducted by an unqualified expert.
In THOIP v. Walt Disney Co., 690 F.Supp.2d 218 – Dist. Court, SD. New York (2010), for example, the plaintiff in the dispute argued that its mark had been infringed by two lines of T-shirts of the Walt Disney Company. Each side argued that the other’s confusion survey was not methodologically sound, rendering it and the accompanying testimony inadmissible.
The Court accepted Disney’s survey evidence but determined THOIP’s survey to be inadmissible because it “did not sufficiently approximate the manner in which consumers encountered the parties’ products in the marketplace, which severely diminished the reliability and probative force of the survey.”
Next Steps
Get in touch with Keegan & Donato Consulting at (914) 967-9421 to learn more about our survey methodologies and our approach to proving trademark infringement.