Attorneys in Wilmington, DE, who need litigation support to bolster their case strategies will benefit from the expertise of trademark survey companies such as Keegan & Donato Consulting.
The vast experience of Keegan & Donato Consulting includes conducting consumer surveys to test a wide variety of Lanham Act claims, such as likelihood of confusion; strength of mark; secondary meaning; acquired distinctiveness; trade dress; and others; false and deceptive advertising; consumer perception; and expert witness testimony on consumer survey, marketing and economic issues.
Do You Really Need a Trademark Survey?
Surveys are valuable tools in trademark litigation because they provide insight into actual consumer perceptions, often when there is no other scientific evidence available. Even though presenting survey evidence is not mandatory, it may help you build a stronger case.
There are, of course, strategic reasons why you may choose to proceed without survey evidence. Perhaps the client cannot afford a survey. Perhaps your pilot survey failed to produce adequate results. Or, perhaps the consumer survey presented by your adversary is so flawed that you hope a rebuttal expert can critique the results without having to conduct another study.
Regardless of the reasons, there are pitfalls to proceeding without survey evidence in a trademark infringement matter that is conducted by trained independent experts based on sound methodologies.
Do You Really Need a Consumer Survey Expert?
Although good survey evidence can be powerful, consumer surveys are not typically accepted without challenge. Courts demand accurate, real-world data. Poor designs and methodological flaws can result in partial or full exclusion of survey evidence from a case.
In Black & Decker Corp. v. Positec USA Inc., 1:11-cv-5426, Dist. Court, N.D. Illinois, Eastern Division (2017), for example, flawed survey evidence caused the Court to toss out an earlier trade dress infringement jury verdict and $53.9 million award in favor of the Plaintiff and order a new trial.
The Court concluded that the likelihood of confusion survey proffered by the Plaintiff had been “so informally designed and conducted that it fails key tests of professionalism and reliability” and should have been excluded from trial.
“Given that Plaintiffs presented no evidence that any consumers were actually confused about the origin of Defendants’ goods, there is a high probability that [the expert’s] flawed testimony unfairly influenced the jury’s verdict… and admission of the survey and [the expert’s] testimony about the survey was fundamentally unfair to Defendants.”
In Parks, LLC v. Tyson Foods, Inc., 2015 WL 4545408, No. 5:15–cv–00946 (E.D. PA. May 10, 2016), plaintiff Parks claimed that the defendant’s “Park’s Finest” sausages and hot dogs infringed on its “Ball Park Franks” brand.
The Court was critical of methodological flaws in a consumer survey submitted by Parks. It “was not probative of secondary meaning” and “was not directed at the appropriate universe of consumers.” Tyson Foods, on the other hand, introduced a consumer survey that showed little evidence of consumer confusion between its Park’s Finest sausages and Parks brand sausages. Tyson Foods prevailed.
Attorneys whose litigation in Wilmington, DE, requires the support and expertise of a trademark survey company will benefit from the extraordinary knowledge of Keegan & Donato Consulting. Contact us at (914) 967-9421 to find out more about our affordable services.