Not all trademark surveys are the same. Different formats can be used to prove or disprove trademark infringement or likelihood of confusion, but selecting the right survey methodology for your case is essential. Deciding which type to use requires knowledge about branding, awareness, distribution, and consumer behavior.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in trademark litigation. Trademark surveys designed and executed by our team can yield fact-based evidence and highly reliable data supporting your legal positions during litigation.
Principals Mark Keegan and Tony Donato offer technical and strategic advice and can help you analyze the economic, financial, and technical complexities of your case; help you decide on deposition questions to ask; help you prepare a testifying expert for deposition and trial; and critique the potential weaknesses in an adversary’s survey evidence in a rebuttal report.
Trademark Survey Formats
There are several commonly used formats for trademark surveys, including the following:
Eveready format – When your case involves popular brands, the Everready format is often the most effective since the audience typically remembers such brands. To measure the likelihood of confusion between two marks, survey respondents are shown a single mark or product and asked who they think makes it.
Squirt format – Often used when the brands are not famous or easily recognizable, the Squirt format survey, also called “the line-up format,” shows respondents the marks or products of both litigants in a side-by-side comparison and asks whether they believe the two products were made by the same company or by different companies.
Teflon and Thermos formats – Most frequently used in genericness cases, respondents are asked questions to determine whether they believe a product name is a brand name or a generic name.
How We Can Help
Keegan & Donato Consulting has experience in cutting-edge consumer research that enables us to measure likelihood of confusion in trademark and trade dress infringement matters. We have worked as experts on behalf of plaintiffs and defendants in support of their litigation in state and federal courts, the Trademark Trial and Appeal Board (TTAB), the NAB, at arbitration, and other specialty venues.
For over three decades, our team has provided consumer surveys for trademark infringement cases involving:
- Likelihood of confusion
- Strength of mark
- Secondary meaning
- Acquired distinctiveness
- Other Lanham Act issues
Selecting and creating a consumer survey is one of the most critical decisions to be made by trial counsel during any trademark litigation.
If you are interested in learning more about the types of trademark survey formats, contact Keegan & Donato Consulting at (914) 967-9421. We can quickly deliver intelligence to you within a wide range of budgets.