Each trademark infringement case is unique. When you need a trademark survey expert in Washington, DC or elsewhere in the U.S., look for companies with experience, training, and data-gathering expertise who will collaborate with you to understand the fundamental issues of your case.
Keegan & Donato Consulting is located in Rye, New York, and serves clients nationwide. We have assisted leading IP firms in Washington, DC, such as Arent Fox LLP, Ropes & Gray LLP, Morgan, Lewis & Bockius LLP, and Hogan Lovells.
Consumer surveys are often regarded by courts as powerful evidence of likelihood of confusion in trademark infringement litigation and TTAB proceedings because they provide crucial information about how consumers perceive marks, product designs, colors, websites, and other stimuli.
The education and combined 25 years of experience of principals Mark Keegan and Anthony Donato in conducting and critiquing consumer research studies has provided us with the skills needed to design and execute state-of-the-art, methodologically sound surveys according to these (and other) survey principles:
- Appropriate universe selection and sampling frame;
- Inclusion of representative, qualified respondents;
- Cutting-edge rotation and randomization of question types;
- Customizable complex skip and display logic when appropriate
- Use of objective, non-leading questions;
- Use of procedures to reduce guessing among respondents; and
- Full analysis and reporting of survey data.
Issues Trademark Surveys Can Measure
In trademark cases, a plaintiff alleging infringement must provide evidence of the infringement. Surveys can be very useful in attempting to measure a number of issues related to intellectual property matters and provide the required evidence.
One of the most common issues addressed by consumer survey research is likelihood of confusion. A well-designed survey can provide direct scientific evidence of the extent to which consumers believe there is a relationship between the plaintiff’s and the defendant’s mark, brand, or product.
Secondary meaning, which occurs when consumers associate an otherwise descriptive mark with a single source, can also be measured by means of a consumer research study, and may provide a strong indication that a mark is no longer descriptive and has become a distinctive identifier of a brand in the minds of consumers.
Acquired distinctiveness can also be measured with consumer survey research. When a mark acquires distinctiveness, it becomes capable of serving as a trademark by associating in the mind of consumers with a particular source of goods and services. This usually happens as a result of extensive advertising and widespread commercial use.
Dilution, which occurs when someone dilutes the strength of a famous mark by tarnishing its reputation or blurring its distinctiveness, is another issue that can be analyzed with a consumer research study. Survey evidence can be used to show whether or not consumers make an association between the junior and senior users of the mark and/or whether they perceive the famous mark less favorably.
Leading trademark survey companies, such as Keegan & Donato Consulting, can design and execute surveys that will withstand the rigors of trademark litigation. Get in touch with us at (914) 967-9421 to learn more about our approach.