Trademark infringement affects many businesses. It’s essential to be proactive about protecting your brand, and conducting a trademark infringement survey can help. IP lawyers and litigators can benefit from consulting with survey experts like Keegan & Donato Consulting to ensure they can obtain reliable data and produce a legally defensible survey.
Keegan & Donato Consulting provides a complete suite of services, including consulting on litigation strategy for plaintiff and defendant clients, consumer research studies, expert reports, testimony in trademark and trade-dress litigation, testimony at deposition and trial, and rebuttal of opposing parties’ surveys when applicable.
About Trademark Infringement Surveys
Trademark surveys are designed to measure consumer perceptions of specific brands or products. Their primary objective is to assess whether consumers are likely to be confused about the source of a particular product or service.
We conduct trademark surveys in various ways, including focus groups, in-person interviews, telephone surveys, and online surveys. They can help businesses and lawyers do the following:
- Identify potential infringement
- Determine the strength of a trademark
- Evaluate the risk of confusion
- Measure damages in trademark infringement litigation
There are different types of trademark surveys, each with its specific use. Below are some of the most common.
Likelihood of Confusion Survey
One primary purpose of a trademark is to prevent consumer confusion. However, some confusion is inevitable thanks to more and more brands competing in the marketplace. A well-executed standard or custom survey from Keegan & Donato Consulting can help determine the likelihood of confusion between two trademarks. We survey a sample of consumers who are asked to compare two similar marks and decide if they are likely to be confused about the source of the product or service.
Strength of Mark Survey
The “strength” of a mark has a bearing on the legal protections available to a mark holder. Fanciful, suggestive, and arbitrary terms are considered inherently distinctive and can be afforded protection. Descriptive marks are unlikely to achieve trademark protection because they lack sufficient distinction to be associated by consumers with a single source.
Secondary Meaning Survey
Descriptive marks are not usually protectable as trademarks unless they have acquired a secondary meaning. Secondary meaning means that the public associates a mark with a particular product or service, regardless of its actual source. Keegan & Donato Consulting can design a survey to target relevant consumers in your client’s market and help you establish that your mark has acquired secondary meaning.
Trademark dilution happens when an infringing party uses a famous mark in a way that tarnishes its reputation for quality or dilutes its strength by blurring its distinctiveness. We can directly measure consumer recognition of a famous mark with a survey.
Trade Dress Survey
Trade dress, like a trademark, is protectable under the Lanham Act. Conducting a consumer survey can help you gather the evidence to prove whether the trade dress in question has established secondary meaning or is likely to cause confusion in the marketplace.
When IP lawyers and litigators are interested in trademark infringement survey consulting to support a case strategy, Keegan & Donato Consulting has the qualifications and expertise to deliver intelligence quickly within a wide range of budgets. Make an informed decision on which survey is right for your needs by understanding the various types of trademark surveys and their uses. Call us today at (914) 967-9421 to find out how we can help.