When looking for experienced companies to handle your trademark survey in California, hiring qualified experts like Keegan & Donato Consulting will significantly impact whether the court deems your survey results admissible.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in trademark litigation.
With 30-plus years of combined experience, proven survey methodologies, and deep operational insight, principals Mark Keegan and Tony Donato have worked as experts on behalf of plaintiffs and defendants in support of their litigation in state and federal courts, the Trademark Trial and Appeal Board (TTAB), the NAB, at arbitration, and at other specialty venues.
We have substantial testimony experience as expert witnesses in high-profile cases that involve consumer behavior and trademark infringement. In addition to trademark surveys, the firm provides services in these and other areas:
- Full-service data gathering and reporting
- Marketing, damages, and forensic economic analysis
- Collaboration on complex commercial litigation issues
- Pilot studies and exploratory research
- Critiqueof opposing experts’ studies and reports
- Advice on deposition and trial questioning of opposing experts
Keegan & Donato has partnered with leading firms across the nation, including Blood Hurst & O’Reardon LLP (San Diego), Ropes & Gray LLP (Washington, DC), SmithAmundsen LLC (Chicago), and Notaro, Michalos & Zaccaria PC (New Jersey), on litigation surveys that have been entered into evidence in matters involving a wide variety of products and services.
The Value of a Trademark Survey
If you debate whether or not you need a trademark survey to support your case strategy, there are some factors to consider before deciding.
While survey evidence is not strictly required, the lack (or inadequacy) of a survey means you will need to persuade the court with other evidence that bears more weight.
Many courts consider the absence of a survey as evidence that there was not enough non-survey evidence to demonstrate confusion by actual consumers. Unless you provide a satisfactory alternative, the court may accept as fact testimony from an opposing expert.
In Roberts v. Puma North America, Inc. (2021), for example, the U.S. District Court for the Southern District of New York ruled against plaintiff Christophe Roberts, a Brooklyn-based artist and designer. He had accused Puma of selling basketball apparel that allegedly infringed his “Roar Mark” teeth design.
The adverse ruling was partly due to Roberts’ inability to show consumer confusion. The court ruled against him, finding that confusion among his social media followers and two customers over a Puma T-shirt worn by Jay-Z, a brand ambassador for Puma, was irrelevant and that Roberts had failed to show confusion as to most of Puma’s “teeth designs.”
Roberts did not offer a trademark survey as evidence of consumer confusion. The court noted this absence, stating that, where the parties “have not submitted any relevant expert opinions or surveys,” the court is left to rely solely on … indirect indications of sophistication,” based “on the nature of the product or its price.”
Rulings like this underscore the important role that well-designed surveys play in courts’ consideration of evidence of consumer confusion or secondary meaning in trademark and trade dress cases.
As you look for trademark survey companies that can help strengthen your California case strategy, reach out to Keegan & Donato Consulting by calling us at (914) 967-9421. We work on a fixed rate or hourly basis depending on the needs of each client and will help you design a reliable, methodologically sound consumer study.