If you are considering a consumer survey for your trademark infringement litigation but have questions about methodology, cost, and other factors, the experts at Keegan & Donato Consulting have the answers you need.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation. The principals – Mark Keegan and Tony Donato – have extensive strategic and analytical skills and more than 25 years of combined expertise in designing, executing, and critiquing consumer research studies in the context of litigation.
Q: Is There a Central Element of Trademark Infringement?
A: Yes. The central element of trademark infringement is “likelihood of confusion.” When marks are too similar, consumers may be confused (or deceived) into buying unwanted good or services, a brand’s reputation may be diluted or damage, or a competitor may benefit from the established reputation of another brand.
The more similarity between two marks, the more likely confusion may occur, and the more likely infringement is possible. When infringement is alleged, litigants often use consumer surveys to persuade the court that consumer confusion between trademarks exists (or does not exist).
Q: Do You Need a Survey Expert?
A: Surveys are valuable tools in trademark litigation because they provide insight into actual consumer perceptions, often when no other scientific evidence is available, and may help you build a stronger case.
Of course, you may decide to proceed without survey evidence. Perhaps the client cannot afford to invest in a survey. Perhaps your pilot survey failed to produce adequate results. However, proceeding without survey evidence that is designed and executed according to scientific and accepted research principles can be hazardous.
Methodological flaws in a survey may cause a judge to attribute little weight to it or deem some or all of it inadmissible. One of many examples is Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014). The Court deemed the plaintiff’s surveys inadmissible after finding them to be unscientific and poorly constructed. The Court also rejected the plaintiff’s survey expert as “unqualified to design a survey or to interpret survey results” [see 45 F.Supp.3d 1167-1170].
Q: What Do Trademark Surveys Cost?
A: Keegan & Donato Consulting designs custom trademark surveys to meet the needs of each individual client. This can involve targeting specialized populations of respondents and developing unique designs to address the specific issues of importance in the case. These factors will affect the time and level of difficulty of executing a consumer study and its overall cost.
Most of our consumer surveys cost from $30,000 to $80,000 to complete, and $55,000 is the most typical cost. We work on an hourly basis or fixed rate depending on your needs and will work with you to design a survey that is both reliable and within your budget. We will always provide you with an estimate of project costs prior to engagement.
Each trademark infringement case is unique. For answers to more consumer survey questions, get in touch with Keegan & Donato Consulting at (914) 967-9421 and learn more about our approach and our affordable services.