Consider Keegan & Donato Consulting for assistance with your Lanham Act false advertising litigation. We can help you use consumer surveys to bolster your case and meet the courts’ requirements for survey design, execution, and analysis.
Principals Mark Keegan and Tony Donato offer more than 30 combined years of expertise in conducting consumer research studies in intellectual property disputes. When your case involves proving whether a particular trademark or advertisement causes consumers to be confused or misled, we can help.
False Advertising Surveys
The Lanham Act is the statutory basis for the majority of trademark claims. Its false advertising section gives you a cause of action against rivals who are involved in misleading advertising or labeling.
Issues raised in the Lanham Act are well-suited to testing through consumer research and can address how consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce. The evidence derived can be very persuasive.
Trademarks (e.g., brand names, product names, symbols, slogans) and trade names may also be challenged as false or misleading in situations such as:
- Class actions brought by consumers under deceptive trade practice and unfair competition laws
- Challenges by a competitor before the National Advertising Division (NAD) of the Council of Better Business Bureaus
- Actions undertaken by the NAD against advertisers
- Actions initiated by the Food and Drug Administration (FDA) for deceptive labeling and advertising
- Challenges brought by the Federal Trade Commission under the FTC Act for unfair and deceptive acts and practices (including deceptive marks)
While nothing in the Lanham Act requires the parties to introduce consumer surveys in these disputes, several court decisions have noted the absence of consumer survey evidence.
In Eagle Snacks, Inc. v. Nabisco Brands, Inc., 625 F.Supp. 583 (D.N.J.1985), for example, the court noted that, “failure of a trademark owner to run a survey to support its claims of brand significance and/or likelihood of confusion, where it has the financial means of doing so, may give rise to the inference that the contents of the survey would be unfavorable, and may result in the court denying relief.”
Methodologically Sound Surveys
At Keegan & Donato Consulting, we consider methodological design the most important aspect of designing consumer surveys. Our state-of-the-art designs adhere to the traditional principles of survey design, including:
- Rigorous, valid design that is probative of the relevant issues in the case;
- Use of clear, concise questions that are not leading or ambiguous;
- Selection of the proper universe and sample;
- Inclusion of representative, qualified respondents;
- Procedures for minimizing potential biases in data collection; and
- Complete analysis and reporting of survey data.
When your case involves Lanham Act litigation against a competitor for false advertising, use our surveys as part of your case strategy. Get in touch with Keegan & Donato Consulting at (914) 967-9421 to utilize our training, expertise, and data-gathering expertise.