As you explore trademark survey companies to assist you with litigation in Saint Louis or elsewhere in the nation, consider a firm like Keegan & Donato Consulting that will meet the courts’ standards for design, execution and analysis.
Keegan & Donato Consulting provides nationwide trademark litigation services and collaborates with plaintiffs and defendants on a wide variety of marketing and complex commercial litigation issues, including consumer research, damages analysis, forensic economic analysis, and related areas.
Our survey expertise combined with our analytical skills and extensive knowledge of intellectual property issues, allow us to quickly understand the dynamics of client companies and markets.
Keegan & Donato Consulting has completed hundreds of consumer research surveys that have been admitted into evidence in state and federal courts, at arbitration, the TTAB, the NAD and other venues. We also have extensive testimony experience.
Some of the industry best practices that we build into our methodologically sound survey designs include:
- Appropriate universe selection and sampling frame;
- Inclusion of representative, qualified respondents;
- Procedures to minimize potential biases in data collection;
- Use of objective, unambiguous, non-leading questions;
- Procedures to limit guessing among respondents; and
- Full analysis and reporting of survey data.
The Value of Hiring a Trademark Survey Expert
Rule 702 of the Federal Rules of Evidence provides that, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.”
Consumer surveys are routinely used to evaluate central issues in trademark infringement cases. Though their introduction as evidence is common, they are not all accepted by the courts or accorded evidentiary weight. 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), “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 favor of the defendant.
In Troublé v. Wet Seal, Inc., 179 F.Supp.2d 291 – Dist. Court, S.D. New York (2001), the court excluded the survey results offered by the defendant in their entirety. “Given the lack of a proper universe and sample, the poor choice of location, the lack of proper stimuli, and questions that have little or no relevance to issues in the case, the Court finds that the prejudicial effect of [defendant’s] survey substantially outweighs its probative value.”
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the plaintiff’s surveys excluded because they were deemed unscientific and poorly constructed. The survey expert was also rejected as unqualified “to design a survey or to interpret survey results.”
These examples illustrate how important it is to choose a qualified survey expert who will be able to withstand cross-examination and explain his or her survey methodology in a clear and concise manner.
Why worry that a survey in your Saint Louis trademark litigation could be deemed by the court to be untrustworthy or unreliable? Hire a company like Keegan & Donato Consulting to deliver persuasive survey evidence that will stand up to judicial scrutiny. Get in touch with us today at (914) 967-9421 to find out more about our wide range of services.