From consulting services to expert witness testimony to preparation of testifying witnesses and post-litigation support, Keegan & Donato Consulting can help strengthen your trademark case.
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.
Mr. Keegan and Mr. Donato have substantial testimony experience as expert witnesses in a number of high-profile cases involving consumer behavior and trademark infringement. We have worked as experts on behalf of plaintiffs and defendants, providing reports, affidavits, declarations, survey research, and expert witness testimony in support of litigation in state and federal courts, the Trademark Trial and Appeal Board (TTAB), the NAB, at arbitration, and at other specialty venues.
The Perils of Not Hiring an Expert
The following example illustrates the importance of choosing an experienced expert witness who is capable of explaining his or her methodology in a clear and concise manner and able to withstand cross-examination.
In Valador, Inc v. HTC Corporation, 1:16-cv-1162 – Dist. Court, E.D. VA (2017), the plaintiff, a NASA contractor, alleged that the defendant, one of the world’s largest cell phone makers, violated its trademark on 3-D rendering software (“VIVE”) by marketing a virtual reality headset with a similar name (“HTC Vive”).
To support its claim of likelihood of confusion, the plaintiff hired a consultant who purported to be an expert in marketing, marketing research, and conducting market surveys, but whose qualifications and capabilities turned out to be inadequate.
The Court determined the expert was “not qualified to present his proffered opinions” and excluded the survey results in their entirety, finding that the survey “(1) failed to evaluate the proper universe of respondents; (2) did not replicate market conditions; (3) neglected to use a control group; (4) eschewed the recognized methodologies for conducting trademark confusion surveys; and (5) asked improperly leading questions. These fundamental flaws, taken together, render the survey so unreliable as to be inadmissible.”
How to Find a Qualified Expert Witness
An expert witness may give an opinion to establish a fact at issue in a case or to help the court understand evidence. There is a scientific component (collecting, testing, and evaluating evidence, and forming an opinion about it), and a forensic component (communicating that opinion, and the methodology and procedures used as a basis for the opinion, to the judge and jury).
Experts can play different roles, so it’s important to identify your specific goals. First, decide if you are looking for a specific methodological approach, such as a statistical analysis to assess damages or an assessment of a brand’s competition.
Next, look at each firm’s experience and credentials. Ask about cases in which they have offered expert testimony to find out if any were similar to your case and whether any of their testimony was excluded. Find out what the firms that hired them thought about their work. Interview each candidate to determine if they fully understand the issues in your case.
Keegan & Donato Consulting provides trademark litigation surveys and expert witness testimony to ensure that the evidence you introduce in your case will hold up to scrutiny from courts and opposing experts. Get in touch with us today at (914) 967-9421 to take advantage of our extensive knowledge and experience.