A consumer research survey can provide powerful evidence in trademark and trade dress infringement cases, but it should be properly designed by qualified experts in order to withstand judicial scrutiny.
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.
Our services include these and other areas:
- State-of-the-art survey design and execution
- Full-service data gathering and reporting capabilities
- Damages analysis and forensic economic analysis
- Pilot studies and exploratory research
- Collaboration on complex commercial litigation issues
- Advice on questioning of opposing experts in deposition and at trial
- Expert witness testimony on consumer survey, marketing & economic issues
- Critique and rebuttal of opposing experts’ studies and reports
The firm has designed hundreds of studies across a wide range of industries to test a wide variety of Lanham Act claims, including likelihood of confusion, strength of mark, acquired distinctiveness, false designation of origin, trade dress infringement, and a wide range of other issues, including damages analysis, forensic economic analysis, and related areas.
Keegan & Donato Consulting has developed surveys for firms that manage some of the largest trademark portfolios in the world, such as Fox Rothschild LLP in New Jersey and Philadelphia, Girard Gibbs LLP in San Francisco, Riemer & Braunstein LLP in Boston, and Hogan Lovells in Washington, DC.
Why You Need a Survey Expert
Courts are very careful to determine whether the design or methodology of a consumer survey was flawed in any way. If there are issues about the selection of sample, interviewer bias or suggestive wording in a survey, for example, a judge may give it little or no weight as evidence.
For example, in Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), the Court determined that survey evidence submitted by the defendant to measure consumer confusion in this trademark infringement and unfair competition case “had too many methodological flaws to be of any probative value” because the survey expert utilized an over-inclusive survey universe, failed to present the marks as they would appear to a consumer, and asked respondents leading and suggestive questions.
Keegan & Donato Consulting has designed hundreds of consumer surveys across industries ranging from designer apparel to high-end audio products and everything in between. Our state-of-the art survey designs employ both classic survey designs and innovative custom survey designs to suit our clients’ needs, and the real-world results we have collected have provided a foundation for presenting fact-based evidence to support their case strategies.
When you need a consumer survey or expert witness testimony for your trademark infringement dispute, Keegan & Donato Consulting can help. Please contact us at (914) 967-9421 to find out how we can help your case. We can deliver intelligence quickly and within a wide range of budgets.