Consumer research evidence can be a valuable tool in trademark litigation, but no survey is perfect, and none is immune to critique and criticism.
Keegan & Donato Consulting assists attorneys and their clients with survey critiques and rebuttals when they are faced with consumer research studies from opposing experts.
We have developed surveys for and provided expert rebuttal testimony on behalf of firms that manage some of the largest trademark portfolios in the world, such as Girard Gibbs LLP in San Francisco, Pashman Stein in New Jersey, Blank Rome LLP in Philadelphia, Stanley, Mandel & Iola LLP in San Diego, and Arent Fox in Washington, DC.
Principals Mark Keegan and Anthony Donato have 25 years of combined experience and education in consumer-based survey research and data analysis, and follow a solid methodological foundation in survey design, execution and presentation, including:
- an appropriate universe selection and sampling frame
- inclusion of representative, qualified respondents
- a rigorous and valid design that proves the relevant issues in the case
- procedures to minimize potential biases in data collection
- use of objective, unambiguous and non-leading questions
Importance of Methodologically Sound Surveys
Surveys continue to receive the critical attention of the courts and may be given little weight or excluded from evidence if poorly designed.
To demonstrate the importance of hiring qualified survey experts in support of your case, consider Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014).
The plaintiff in the trademark dispute argued that the Google trademark had become generic because the public has come to understand the word, when used as a verb, to mean conducting an Internet search without regard to the search engine used.
Google’s survey evidence was accepted by the Court as relevant [see 45 F.Supp.3d 1166]. However, the plaintiff’s surveys were determined to be inadmissible 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” [see 45 F.Supp.3d 1167-1170].
Relying on the Federal Judicial Center’s Reference Manual on Scientific Evidence, the Court reiterated that, “the survey expert must demonstrate an understanding of foundational, current, and best practices in survey methodology, including sampling, instrument design …, and statistical analysis.” There was no evidence the plaintiff’s surveys were conducted according to generally accepted principles.
After excluding the survey evidence, the Court concluded that the plaintiffs had presented “no evidence that the primary significance of the word google to a majority of the consuming public is a common descriptive term for search engines,” and confirmed that “Google” remains a valid and protectable trademark.
Why Choose Keegan & Donato Consulting
Do you know if an opposing expert in your case adhered to the fundamental scientific principles that apply to the design and execution of survey research? Was the survey designed to query the appropriate population or universe? Were the survey results based on ambiguous, misleading or subjective questions? Did the researcher accurately report the data gathered?
With an unparalleled knowledge of the science and methodology behind consumer research surveys, Keegan & Donato Consulting has the ability to identify flaws and weaknesses in a study that may not be apparent to an untrained eye, but may help you refute the credibility of an expert’s work.
Whether you are interested in a trademark survey critique to expose a study’s flaws or want to run a study of your own to gather evidence that may strengthen your case, take advantage of our extraordinary expertise by contacting Keegan & Donato Consulting at (914) 967-9421.