When you are seeking trademark survey companies to help bolster your Columbus case or to refute an allegation of infringement, consider Keegan & Donato Consulting. We are a specialty research consultancy and one of the most experienced companies in the field of trademark litigation.
The principals of Keegan & Donato Consulting – Mark Keegan and Tony Donato – offer a combined 25 years of strategic and analytical skills in the area of intellectual property litigation, and have collaborated extensively with plaintiffs and defendants in support of trademark infringement and trade dress litigation and on cases involving marketing, business and financial issues.
We have been engaged by top IP litigation firms, such as Reed Smith LLP in Chicago, Debevoise & Plimpton LLP in New York, and Giampolo Law Group in Philadelphia, and Girard Gibbs LLP in San Francisco, as well as leading firms from coast to coast.
When Are Surveys Useful?
Is it worth doing a survey? Can it help you shape your strategy or win your case? These are commonly asked questions.
Surveys are valuable tools in trademark litigation because they provide insight into actual consumer perceptions, often when no other scientific evidence is available. By asking relevant consumers to respond to certain stimuli and recording their answers, it is possible to measure their attitudes and behaviors, and understand how they perceive a contested mark.
Likelihood of Confusion – When too similar to an existing mark, an allegedly infringing mark may confuse consumers into buying unwanted good or services, dilute or damage a brand’s reputation, or allow competitors to benefit from the established reputation of another brand. The more similarity there is between two marks, the more likely confusion and infringement may occur.
Keegan & Donato Consulting’s surveys address this issue of consumer confusion from a scientific perspective, providing empirical data regarding the extent to which consumers believe that certain brands at issue emanate from the same source or are somehow related.
Secondary Meaning – Secondary meaning arises when consumers have come to identify trademarks that consist of words with an ordinary and primary meaning of their own with a certain product over time. When this happens, a descriptive mark may be entitled to protection even though it is sometimes used by consumers in a generic sense.
For example, ChapStick® for lip balm and Band-Aid® for an adhesive bandage were able to achieve trademark status because the manufacturers were able to prove that a link had been established in the minds of consumers – a secondary meaning – between the products and their sources.
Genericness Surveys – Under the Lanham Act, a previously protected mark can be subject to cancellation if it “becomes the generic name for the goods or services, or a portion thereof, for which it is registered” (15 U.S. Code § 1064(3)). This has happened to a number of former trademarks, such as aspirin, shredded wheat, cellophane, escalator, and linoleum, which eventually became the common names for those products.
Consumer surveys are widely accepted in cases involving genericness claims in order to evaluate whether consumers consider the trademark or trade dress to be a brand name or design, or common or generic.
Why You Need a Survey Expert
To be considered relevant and reliable, surveys must be designed according to scientific and accepted research principles or they risk being afforded little weight by the court and rendered useless as evidence.
Methodologically sound consumer surveys and expert testimony from Keegan & Donato Consulting will meet the courts’ standards for design, execution and analysis and can serve as powerful evidence in your case.
When your infringement case in Columbus requires you to evaluate trademark survey companies, consider the expertise of Keegan & Donato Consulting. Get in touch with us at (914) 967-9421 to find out how we can help.