Trademark survey evidence can be invaluable. Working with experts who design and execute methodologically sound consumer research studies can make a difference in the success of your Philadelphia litigation.
Keegan & Donato Consulting is located in Rye, New York, and serves clients from coast to coast. In Philadelphia, we have assisted leading IP firms such as Kaye Scholer LLP, Giampolo Law Group, Duane Morris LLP, and Blank Rome LLP, and many other firms.
Relying on over 25 combined years of proven survey methodologies, deep operational insight and vast industry experience, principals Mark Keegan and Tony Donato provide expert research, analysis, affidavits and reports on behalf of plaintiffs and defendants in support of trademark infringement litigation, and have collaborated extensively on cases involving business, marketing, and financial issues.
How a Survey Expert Can Help
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 to ensure that your survey can withstand the rigors of litigation.
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), for example, the plaintiff’s surveys were excluded because they were deemed unscientific and poorly constructed. The survey expert was also rejected by the Court as unqualified “to design a survey or to interpret survey results.”
Issues Trademark Surveys Can Measure
Surveys can be very useful in attempting to measure a number of issues related to intellectual property matters and provide evidence of infringement.
A common issue 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 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 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.
Lanham Act Claims – Lanham Act issues are particularly well-suited to testing through consumer research. Strengthen your case with a well-designed survey conducted by Keegan & Donato Consulting which can provide empirical evidence on the issue of whether an alleged trademark infringement is having a real world impact on consumers.
As you consider trademark survey experts to assist you with litigation in Philadelphia, consider a firm like Keegan & Donato Consulting that will meet the courts’ standards for design, execution and analysis. Get in touch with us today at (914) 967-9421 to find out more about our wide range of services.