When you need a likelihood of confusion expert with a combination of strategic and analytical skills who can assist you with your trademark infringement litigation, Keegan & Donato Consulting can help.
Keegan & Donato Consulting, a specialty research consultancy, is located in Rye, New York. We provide a complete suite of services, including consulting on litigation strategy for both plaintiff and defendant clients across the nation, consumer research studies, expert reports, testimony during litigation, testimony at deposition and/or trial, and rebuttal of opposing parties’ surveys when applicable.
Principals Mark Keegan and Tony Donato have more than 25 years of cumulative experience in the field of consumer research and develop consumer surveys on many topics within the fields of trademark and trade dress, including:
- Likelihood of Confusion Analysis & Surveys
- Strength of Mark Analysis & Surveys
- Secondary Meaning Analysis & Surveys
- Lanham Act Analysis & Surveys
- Trade Dress Analysis & Surveys
- False & Deceptive Advertising Surveys
- Consumer Perception Analysis & Surveys
- Consumer Understanding Studies
- Marketing, damages and forensic economic analyses
- Expert Witness Testimony
- Critique of opposing experts’ studies and reports
- Advice on deposition and trial questioning of opposing experts
One of the primary purposes of a trademark is to prevent consumer confusion. When too similar, marks may confuse consumers into purchasing unwanted brands, damage or dilute a brand’s reputation, or allow competitors to benefit from the established reputation of another brand.
Trademarks can be similar in appearance, sound, and meaning. Similarity is determined by whether the relevant consuming public is likely to be confused by the junior mark. The more similarity, the greater the chances there will be confusion between the marks, and the greater the chances that infringement will occur.
Why You Need a Survey Expert
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.
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. Or, perhaps you adversary presented a flawed consumer survey that you hope a rebuttal expert can critique the results without having to conduct another survey.
It can be hazardous, however, to proceed in a trademark infringement matter without survey evidence that is designed and executed by trained independent experts using sound methodologies.
In Valador, Inc v. HTC Corporation, 1:16-cv-1162 – Dist. Court, E.D. VA (2017), for example, the plaintiff 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 a likelihood of confusion claim, the plaintiff hired a consultant who claimed to be an expert in marketing, marketing research, and conducting market surveys, but who turned out to be unqualified.
The Court excluded the survey results in their entirety, determining that the expert was “not qualified to present his proffered opinions,” and 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.”
Get in touch with the likelihood of confusion experts at Keegan & Donato Consulting at (914) 967-9421 to learn more about the importance of consumer survey evidence in trademark litigation. We will help you design a reliable, methodologically sound consumer study to support your case.