When you need trademark survey companies that offer a combination of strategic and analytical skills to assist you with your trademark infringement litigation in Oakland, CA, look no further than Keegan & Donato Consulting.
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 30 combined years of proven survey methodologies, deep operational insight, and broad industry experience.
- execute surveys with rigorous methodological principles
- document and support the choice of survey questions and sample method
- minimize the possibility of bias
- carefully analyze the data gathered
- support the results with knowledgeable, reliable expert testimony
Our firm will provide you with technical and strategic advice; help you analyze the economic and technical complexities of your case; help you determine appropriate deposition questions to ask; assist you in preparing a testifying expert for deposition and trial, or critique the potential weaknesses in your adversary’s survey evidence in a rebuttal report.
Can a Flawed Survey Damage Your Case?
Consumer surveys can play an essential role in proving the likelihood of confusion, secondary meaning, strength of mark, acquired distinctiveness, genericness, consumer perception, and other issues when no other scientific evidence is available.
The evidence can be robust, but consumer surveys are not typically accepted without challenge. Courts scrutinize them for methodological flaws. Issues of sample selection, interviewer bias, or suggestive wording may cause a judge to give a survey little weight or deem some or all of the results inadmissible. Hiring qualified survey experts will help prevent your survey from coming under attack.
In Cumberland Packing Corp. v. Monsanto Co., 140 F.Supp.2d 241 – Dist. Court, E.D. New York (2001), for example, “the court determined that the results of the [plaintiff’s] surveys were unreliable because of serious flaws in the protocol and methodology” and ruled in the defendant’s favor.
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the plaintiff’s surveys were deemed inadmissible because the court determined them to be unscientific and poorly constructed. The survey expert was also rejected as unqualified “to design a survey or interpret survey results” [see 45 F.Supp.3d 1167-1170].
In Vital Pharmaceuticals, Inc. v. Monster Energy Company – Dist. Court, SD Florida (2021), the court ruled against plaintiff Vital Pharmaceuticals, Inc.’s (VPX) claim of trade dress infringement against defendant Monster Energy Co. “VPX has not shown any likelihood of confusion between Bang and Reign because among other things… (2) VPX has failed to put forth direct evidence of actual confusion, and (3) VPX’s indirect evidence of confusion, in the form of a survey, is almost comically flawed.”
Take advantage of the extraordinary expertise of trademark companies like Keegan & Donato Consulting for your litigation in Oakland, CA. We can deliver intelligence quickly and within a wide range of budgets. Call us today at (914) 967-9421.