Survey research techniques are often employed in trademark infringement litigation cases to gather evidence and support legal arguments. These techniques involve using surveys to collect data from a sample of potential consumers or users of the trademarked products or services. The goal of such surveys is to determine whether there is a likelihood of confusion between the infringing mark and the original mark and to assess the impact of the infringement on the trademark owner’s reputation and business. Keegan & Donato Consulting’s survey research techniques provide valuable empirical evidence that helps establish a strong case in trademark infringement litigation.
As a specialty research consultancy in Rye, New York, our firm has 30+ years of combined experience, established survey methodologies, and deep operational insight. We are among the most skilled companies in trademark litigation.
Types of Surveys in Trademark Cases
We utilize several types of surveys, including:
- Likelihood of Confusion Surveys: These surveys assess the likelihood that consumers will be confused between two marks.
- Secondary Meaning Surveys: These surveys whether consumers identify trademarks consisting of ordinary words with a specific product. When this occurs, a descriptive mark that initially could not be registered may be entitled to protection even though consumers sometimes use it in a generic sense
- Dilution Surveys: If a famous mark is not inherently distinctive
- , these surveys can be used to evaluate the degree of similarity between two marks and to measure a mark’s degree of recognition in the consumer’s mind. It can be used to measure a mark’s acquired distinctiveness.
- These surveys measure the blurring or tarnishing effects on a famous mark due to the presence of another similar mark.
In addition to consumer confusion and dilution surveys, other survey research techniques may also be used in trademark infringement litigation. For example, we can conduct surveys to assess consumer awareness and recognition of a specific mark, as well as consumer attitudes towards trademarks and their importance in purchasing decisions. These types of surveys can provide valuable insights into consumer behavior and preferences, which can be used to support claims of trademark infringement.
Overall, survey research techniques are crucial in trademark infringement litigation, as they provide empirical evidence to support legal arguments. These techniques allow attorneys and experts to gather consumer data and assess their perceptions and attitudes toward trademarks. By using survey research techniques effectively, attorneys can strengthen their case by presenting compelling evidence that demonstrates likelihood of confusion or dilution, ultimately increasing their chances of success in trademark infringement litigation.
Avoid Problems by Hiring Qualified Survey Experts
Survey evidence can be a persuasive part of your overall case strategy, but the court will view it critically. If it is poorly designed or contains errors, it may be given little weight or excluded from evidence.
In Valador, Inc v. HTC Corporation, Case No. 1:16-cv-1162 Dist. Court, E.D. Virginia (2017), the plaintiff alleged that defendants infringed on its registered mark, “VIVE,” which it used in connection with the sale of its software by selling a headset named the “HTC Vive.”
An expert was hired to conduct a survey to support the plaintiff’s likelihood of confusion claim. The defendant argued that the survey testimony should be excluded because the expert was not qualified and used unreliable survey methods and principles to reach his conclusions.
The court agreed and granted the motion to dismiss the survey results. “These fundamental flaws, taken together, render the survey so unreliable as to be inadmissible:
- [The survey] failed to evaluate the proper universe of respondents,
- did not replicate market conditions,
- neglected to use a control group,
- eschewed the recognized methodologies for conducting trademark confusion surveys and
- asked improperly leading questions.”
The court determined that the plaintiff’s expert “was not qualified to design a survey or interpret survey results” because he “lacked the necessary experience with trademark infringement claims.”
Next Steps
When you want to know more about survey research techniques for trademark infringement litigation, consider the experts at Keegan & Donato Consulting. Get in touch with us at (914) 967-9421 to explore our services.