Trade Dress Infringement

When you need to prove or contest an issue of trade dress infringement, a consumer research study conducted by Keegan & Donato Consulting can help you gather the evidence you need.

Keegan & Donato Consulting is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients in cases involving acquired distinctiveness, secondary meaning, and a wide variety of marketing and commercial litigation issues.

Principals Mark Keegan and Tony Donato offer impeccable credentials and more than 25 years of combined experience in conducting consumer surveys in the context of intellectual property disputes.

Mr. Keegan’s background in complex litigation on behalf of clients involving marketing, economics, business, and financial issues, together with Mr. Donato’s background in research, survey design and execution, strategy and data analysis, create a complementary blend of strategic and analytical skills.

We are capable of quickly delivering intelligence within a wide range of budgets.

What is Trade Dress?

Trade dress generally refers to the distinctive appearance of a product’s packaging, including features such as size, shape, color(s), texture or graphics, but may also include the design and shape of the product itself.

In the case of a product, trade dress could be the distinctive packaging, the accompanying displays, or the product design itself. In the case of 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.

Like a trademark, trade dress is protectable under the Lanham Act in order to prevent consumers from buying one product while believing it is a different product.

An unregistered 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 which may have previously been unavailable.

Value of Consumer Surveys

Incorporating a consumer research study as part of your trademark litigation can help you prove acquired distinctiveness and secondary meaning, and should be a primary consideration in developing case strategy.

To be considered relevant and reliable, however, surveys must be designed according to scientific and accepted research principles.

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.

We can conduct a likelihood of confusion survey to address the issue of consumer confusion from a scientific perspective, providing empirical data regarding the extent to which consumers believe that certain brands at issue emanate from the same source or are somehow related.

To prove acquired distinctiveness or secondary meaning, we can design a consumer research survey to target relevant consumers in your client’s market and help you determine the extent to which consumers associate a contested mark with a single or multiple sources.

Keegan & Donato Consulting has extensive experience in conducting consumer survey research to measure trade dress infringement and can help you determine if an alleged infringement is having a real-world impact on consumers. Call us at (914) 967-9421 and let us help you develop a powerful case strategy.

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