Trademark litigation is on the rise. Discover how trademark survey experts like Keegan & Donato Consulting can help you prove or disprove your likelihood of confusion or trademark infringement case.
Keegan & Donato Consulting provides service to attorneys practicing in federal and state courts, before arbitration panels, the TTAB, the NAD, and other specialty venues. Principals Mark Keegan and Tony Donato offer clients more than 25 combined years of proven survey methodologies, deep operational insight, and extensive industry experience.
Our nationwide 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
- Critique and rebuttal of opposing experts’ studies and reports
- Advice on questioning of opposing experts in deposition and at trial
- Expert witness testimony on consumer survey, marketing & economic issues
We provide expert research, analysis, affidavits and reports on behalf of plaintiffs and defendants in support of trademark infringement litigation, and have collaborated extensively on cases involving business, marketing, and financial issues.
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 are thinking you may not need 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.”
Trademark surveys can be used to test a wide range of Lanham Act claims. When you need survey experts for litigation, take advantage of the extraordinary expertise of Keegan & Donato Consulting. Call us at (914) 967-9421 to find out how we can help. We can deliver intelligence quickly and within a wide range of budgets.