Trade dress, like a trademark, is protectable under the Lanham Act. A survey expert can help you gather evidence to prove whether the trade dress in question is causing confusion in the marketplace, bolstering your claim of infringement.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced firms in the field of trademark litigation. Principals Mark Keegan and Tony Donato offer clients more than 25 years of combined experience and impeccable credentials in consumer-based survey research and data analysis, and follow a solid methodological foundation in survey design, execution and presentation.
We have worked as experts on behalf of plaintiffs and defendants in support of their litigation in state and federal courts, the Trademark Trial and Appeal Board (TTAB), the NAB, at arbitration, and at other specialty venues.
Understanding Trade Dress
Trade dress refers to the “dress” of a product – the design and shape of the materials in which it is packaged, including size, shape, color or color combinations, texture, or graphics – but may also include the design and shape of the product itself.
It is intended to protect consumers from packaging and characteristics that imitate other products and to prevent a consumer from buying one product while believing it is a different product.
For products, trade dress could be the distinctive packaging, the accompanying displays, or the product design itself, such as the shape of a Coca-Cola bottle. For services, trade dress could be the décor of the place where the services are provided, e.g., the distinctive interior of a national chain restaurant or the design of the building.
Trade dress is entitled to protection under §43(a) of the Lanham Act if it is distinctive, either inherently or through an acquired distinctiveness (or secondary meaning), and not likely to confuse confusion in the marketplace about its source. A finding of secondary meaning may open the path to trademark protections that may have previously been unavailable.
Trade dress infringement can occur in any industry as well as across industries. In Deere & Co. v. FIMCO INC., Case No. 5:15-CV-105-TBR, Dist. Court, W.D. Kentucky (2017), for example, John Deere won a trade dress infringement case against FIMCO, an agricultural spraying company that was producing equipment using John Deere’s famous green and yellow color combination. The court found in favor of Deere & Co. because of the potential likelihood of confusion among consumers.
How a Consumer Survey Can Help
Incorporating a consumer research survey as part of your litigation can help you prove acquired distinctiveness and secondary meaning, and should be a primary consideration in developing your case strategy.
Many consumer surveys, however, are found by the courts to contain significant methodological flaws, such as leading, suggestive or ambiguous questions; under-inclusive or over-inclusive sampling of the consumer universe; sampling from the wrong geographic area; and so on. These flaws can reduce the credibility of the survey.
For this reason, it is important to employ experts, such as Keegan & Donato Consulting. Our careful application of methodologically sound guidelines in the design, execution, and analysis of surveys increases their accuracy and improves their chances of being accepted by courts.
When looking for trade dress infringement survey experts to assist you in litigation anywhere in the nation, call Keegan & Donato Consulting at (914) 967-9421 to take advantage of our extraordinary expertise in consumer research.