Trademark surveys can be used to test a wide range of trademark infringement claims. When you need survey experts who can assist you in selecting the right type of survey for your case, take advantage of the extraordinary expertise of Keegan & Donato Consulting.
About Keegan & Donato Consulting
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation. With over 30 years of combined experience, proven survey methodologies, and deep operational insight, principals Mark Keegan and Tony Donato have expertise on many topics in the areas of trademark and trade dress.
We have conducted hundreds of consumer research studies across various industries for cases in federal court, state court, the TTAB, the NAD, arbitration hearings, and other specialty venues. We will:
- execute surveys with rigorous methodological principles
- document and support the choice of survey questions and sample method
- minimize the possibility of bias
- carefully analyze the data gathered
- support the results with knowledgeable, reliable expert testimony
Our firm can provide you with technical and strategic advice; help you choose the right type of survey; help you analyze the economic, financial, and technical complexities of your case; help you determine suitable deposition questions to ask; help you prepare a testifying expert for deposition and trial; or critique the potential weaknesses in an adversary’s survey evidence in a rebuttal report.
Could a Survey Help Your Case?
Although good survey evidence can be powerful, consumer surveys are not typically accepted without challenge. Courts require accurate, real-world data, and poor designs and methodological flaws can result in partial or full exclusion of survey evidence from a case.
In Parks, LLC v. Tyson Foods, Inc., 2015 WL 4545408, No. 5:15–cv–00946 (E.D. PA. May 10, 2016), for example, plaintiff Parks claimed that the defendant’s “Park’s Finest” sausages and hot dogs infringed on its “Ball Park Franks” brand.
The Court was critical of methodological flaws in a consumer survey submitted by Parks. It “was not probative of secondary meaning” and “was not directed at the appropriate universe of consumers.” Tyson Foods, on the other hand, introduced a consumer survey that showed little evidence of consumer confusion between its Park’s Finest sausages and Parks brand sausages. Tyson Foods prevailed.
If you think you may be able to forgo a survey for your trademark litigation, consider that a number of court decisions have drawn negative inferences from the absence of survey evidence.
In Pharmacia Corp. v. Alcon Labs, Inc., 201 F.Supp. 2d 335, 373 (D.N.J. 2002), the court noted that, “Pharmacia is not legally required to conduct a confusion survey. But … such a failure, particularly when the trademark owner is financially able, justifies an inference that the plaintiff believes the results of the survey will be unfavorable.”
As you evaluate trademark survey experts to assist you in selecting the right type of survey for your infringement case, consider Keegan & Donato Consulting. Get in touch with us at (914) 967-9421 to learn more about our services.