Survey evidence is a common way to prove secondary meaning, a crucial step in trademark litigation. Keegan & Donato Consulting can help you use surveys to develop a robust case or rebuttal strategy.
Principals Mark Keegan and Tony Donato offer many analytical and strategic skills in IP litigation. We have collaborated with plaintiffs and defendants to support trademark infringement and trade dress litigation and cases involving business, marketing, and financial issues.
With 30 years of expertise in conducting methodologically sound consumer surveys, our expert, objective analysis will ensure the persuasiveness and admissibility of the results.
What is Secondary Meaning?
Ordinarily, descriptive marks cannot receive trademark protection unless they have acquired a “secondary meaning” through advertising or exposure.
Secondary meaning occurs when significant numbers of consumers are presented with a mark consisting of words that have an ordinary meaning and associate that mark with a specific supplier of goods or services. When this transpires, a descriptive mark that a business was not initially able to register may be entitled to trademark protection even though the mark is sometimes used generically by consumers.
For example, ChapStick® for lip balm, Xerox® for copy machines, and Band-Aid® for an adhesive bandage were all generically used descriptive marks but eventually achieved trademark status because the manufacturers proved that a link had been established in the minds of consumers – a secondary meaning – between the products and their sources.
Another excellent example is the word “Apple.” It mainly refers to a type of sweet, edible fruit. However, many consumers associate it with its secondary meaning, which is specific to a brand of computers, not just to computers in general.
The Keegan & Donato Consulting team can help you solve your litigation challenges with actionable insight gained from consumer surveys designed by highly qualified experts who can quickly deliver intelligence within a wide range of budgets.
We have worked for firms across the nation, such as Ropes & Gray LLP in Washington, DC, Blood Hurst & O’Reardon LLP in San Diego, Debevoise & Plimpton LLP in New York City, and Giampolo Law Group in Philadelphia, to develop effective strategies that can prove secondary meaning, acquired distinctiveness, strength of mark, and more.
We also have extensive experience in rebutting surveys submitted by opposing experts. If you are confronted during litigation with a research study that may not have been designed or executed correctly, we have the ability to identify small and large methodological flaws and provide expert analysis for rebuttal in high-stakes IP disputes.
Keegan & Donato Consulting offers a unique combination of strategic and analytical skills for the use of secondary meaning and other types of surveys in trademark litigation. Get in touch with us at (914) 967-9421 to take advantage of our extensive knowledge and expertise.