The use of trademark dilution surveys in intellectual property disputes can help bolster a case by providing empirical data about the beliefs and attitudes of consumers toward a product or mark.
Keegan & Donato Consulting works on behalf of both plaintiffs and defendants to provide research, analysis, affidavits, declarations and expert reports as needed in support of trademark infringement and trade-dress litigation, and has collaborated extensively on cases involving marketing, business and financial issues.
The firm has been engaged by top IP litigation firms, such as Debevoise & Plimpton LLP in New York, Reed Smith LLP in Chicago, Girard Gibbs LLP in San Francisco, and Giampolo Law Group in Philadelphia, as well as other leading firms from coast to coast.
Because there are a variety of approaches to substantiating a claim of dilution, we work closely with clients to understand the unique issues affecting their cases. Our methodologically sound consumer surveys and skillful, objective analysis will ensure the admissibility and persuasiveness of the results and help you develop a powerful case or rebuttal strategy.
About Trademark Dilution
Dilution of trademarks occurs when a third party’s unauthorized use of a famous trademark weakens the distinctiveness of the trademark or damages its reputation. If the infringement is found to have been intentional, the Lanham Act provides for additional remedies.
Dilution by blurring occurs when a famous mark becomes identified with more than one type of product, such as might happen if consumers encountered “Rolls Royce” toothpaste or “Starbucks” handbags. Dilution by tarnishment occurs when a famous mark is harmed by an association with a low quality or unsavory product, such as using the children’s game “Candyland” for the name of an adult website.
Proving dilution, whether by blurring or tarnishment, can be challenging, but consumer surveys can be used to establish such proof. The first step is to determine whether the mark is widely recognized by the general consuming public (the “fame” standard).
If a famous mark is not inherently distinctive, survey evidence may be used to evaluate the degree of similarity between two marks and to measure a mark’s degree of recognition in the minds of consumers. A secondary meaning survey may be used to measure a mark’s acquired distinctiveness. And dilution surveys may be used to establish the existence of actual association between the marks at issue.
Why Hire Qualified Survey Experts
If you are debating the value of hiring the most qualified survey experts in support of your case, consider Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 569-70 – Dist. Court S.D. New York (2007), in which the court excluded the evidence and testimony of all three of the plaintiff’s likelihood of confusion and dilution survey experts and two of the defendant’s three experts on the basis that the surveys were unreliable, plagued by significant methodological flaws, and that “any probative value was substantially outweighed by the danger of unfair prejudice and misleading the jury.”
Keegan & Donato Consulting’s litigation surveys have been accepted as evidence in matters involving a broad range of products and services. We also have extensive testimony experience.
Our firm is eminently qualified to provide you with trademark dilution and other types of litigation surveys for use in your intellectual property matter. Contact Keegan & Donato Consulting at (914) 967-9421 to find out more about how consumer data can help strengthen your case.