If you are involved in a trademark infringement case, it’s essential to understand the importance of consumer surveys in proving your case. When a survey is not used, you will have to persuade the court with compelling evidence that bears more weight.

Keegan & Donato Consulting designs and executes consumer survey research studies and collaborates on various marketing and complex commercial litigation issues.

How a Survey Can Strengthen Your Case

Surveys are invaluable in trademark litigation because they provide insight into actual consumer perceptions, often when no other scientific evidence is available. While presenting survey evidence is not mandatory, it may help you build a stronger case.

Once data is collected, experts can interpret the facts and testify to a judge or jury, addressing unique questions central to your case’s issues and helping you quantify damages.

Keegan & Donato Consulting specializes in intellectual property issues, such as:

• Likelihood of Confusion –We measure likelihood of confusion through classic survey designs and by crafting innovative custom surveys to meet client needs. We have designed and critiqued hundreds of these studies across a broad range of industries for cases in federal court, state court, arbitration hearings, the TTAB, the NAD, and other specialty venues.
• Strength of Mark –Distinctive marks are granted more protection by the courts because they identify the source of a particular product or service. Consumer surveys can yield reliable evidence in trademark infringement cases. 
• Secondary Meaning –Some marks are not inherently distinctive and can be protected only if they have acquired “secondary meaning.” Proving secondary meaning can be a crucial step in trademark litigation. 
• Acquired Distinctiveness – Descriptive marks and geographically descriptive marks, such as Hawaiian Fruit Punch, may be protectable if they have acquired distinctiveness. Keegan & Donato Consulting offers extensive experience in conducting acquired distinctiveness surveys. 
• Lanham Act Claims – The Lanham Act prohibits trademark infringement, trademark dilution, and false advertising. A well-designed consumer research study can provide empirical evidence on the issue of whether an alleged trademark infringement is having a real-world impact on consumers. 

The Value of a Trademark Survey

If you have not decided whether or not you need a trademark survey to support your case strategy, consider that the court may accept testimony presented by an opposing expert as fact unless you offer an alternative. 

In Classic Liquor Importers, LTD v. Spirits International B.V., No. 15 Civ. 6503 (JSR), Dist. Court, S.D. New York 2016, for example, product quality was an issue in the case. However, the Court disregarded this factor, stating, “without the aid of consumer survey evidence or expert testimony, the Court is unable to draw any conclusions as to the respective quality of the products.” 

The defendant, Spirits International B.V., also pursued a Lanham Act counterclaim of false advertising. However, “it did not commission a consumer survey” and could not point to reliable evidence of consumer deception or confusion. The plaintiff’s motion for summary judgment on this counterclaim was granted.

If you would like to know more about the importance of consumer surveys in trademark cases, Keegan & Donato Consulting can help. Contact us at (914) 967-9421 to learn more about our affordable services.