Keegan & Donato Consulting’s litigation surveys have been accepted as evidence in matters involving a broad range of intellectual property issues, including trademark blurring and tarnishment. Take advantage of our extensive experience to help bolster your case.
With more than 25 combined years of experience in conducting and critiquing consumer survey research, Keegan & Donato Consulting can design surveys that avoid methodological pitfalls that often afflict competing surveys.
Our firm has developed surveys for plaintiffs and defendants throughout the nation on issues related to dilution, likelihood of confusion, strength of mark, secondary meaning, acquired distinctiveness, false advertising, and many other topics.
About Trademark Dilution
Prior to 1996, when the Federal Trademark Dilution Act (FTDA) (15 U.S. Code, Section 1125(c)) was enacted, there was no federal law that prohibited trademark dilution. However, owners of famous marks were required to prove actual injury to the economic value of their mark rather than the likelihood of dilution.
This decision in 2006 and Congress enacted the Trademark Dilution Revision Act (TDRA), which defined the different types of dilution and clarified the factors that make a mark “famous.” It provided additional remedies when an infringing party willfully intends to trade on the recognition of or damage the reputation of the famous mark.
“Dilution by blurring” occurs when a famous mark becomes identified with more than one type of product, diminishing the uniqueness of the mark, such as might happen if consumers encountered “Coca-Cola” toothpaste or “Starbucks” shoes.
“Dilution by tarnishment” occurs when the reputation of a famous mark is negatively impacted by association with an unflattering or unsavory product, such as naming an adult website after the children’s game “Candyland.”
Proving dilution, whether by blurring or tarnishment, can be challenging, but we can conduct consumer surveys to establish such proof. The first step is to determine whether the mark is widely recognized by the general consuming public (the “fame” standard).
Suppose a famous mark is not inherently distinctive. In that case, survey evidence may be used to evaluate the degree of similarity between two marks and measure a mark’s degree of recognition in consumers’ minds. A secondary meaning survey can be used to measure a mark’s acquired distinctiveness. And dilution surveys may be used to establish the existence of an actual association between the marks at issue.
Because there are several approaches to substantiating a claim of dilution, we work closely with clients to understand the fundamental issues of their unique cases.
Keegan & Donato Consulting is eminently qualified to provide you with litigation surveys for proving trademark blurring or tarnishment. Contact us at (914) 967-9421 to learn how consumer research data can strengthen your case.