Consumer surveys are a valuable tool used in trademark litigation, and are often regarded as the most direct and persuasive evidence of the likelihood of confusion.

Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced companies in the field of trademark litigation. Our firm designs, executes, analyzes, and presents the results of consumer surveys, including:

• Likelihood of Confusion
• Strength of Mark
• Secondary Meaning
• Acquired Distinctiveness
• Dilution
• Lanham Act Claims
• Consumer Perception
• Survey Critiques and Rebuttals

The Value of Trademark Surveys

The Lanham Act prohibits the unauthorized use of a registered mark in a manner that is “likely to cause confusion, or to cause mistake, or to deceive.”

Consumer surveys can be very influential in determining whether a likelihood of confusion exists, particularly in the absence of other persuasive evidence. They can also be instrumental in settlement negotiations.

By asking relevant consumers to respond to certain stimuli and recording their answers, it is possible to measure their attitudes and behaviors, and understand how they perceive a contested mark.

Trademark cases can be complex, however, and are frequently decided based on the quality of the evidence presented. To be considered relevant and reliable, consumer surveys must be conducted by trained independent experts using sound methodologies, or the court may find them to be of little value.

About Keegan & Donato Consulting

Mark Keegan and Tony Donato offer more than 25 years of experience and a combination of strategic and analytical skills.

Mr. Keegan has spent more than 15 years formulating case strategies in complex litigation. He has consulted on a wide range of issues, from marketing and international business to consumer research for Lanham Act claims. Mr. Keegan is licensed to practice law in New York and Connecticut and is an AMA-designated Professional Certified Marketer.

Mr. Donato has served as a consultant in complex litigation matters since 2004. He has a strong analytical background in marketing, intellectual property, and consumer behavior cases covering consumer surveys, trademark, copyright, best efforts, advertising, business damages, and business marketing ethics. He received a Master of Public Policy from Georgetown University.

Keegan & Donato Consulting has designed and critiqued hundreds of consumer research studies across a broad range of industries for cases in federal court, state court, the TTAB, the NAD, arbitration hearings, and other specialty venues, and can:

• conduct surveys with rigorous methodological principles
• document and support the choice of survey questions and sample method
• minimize the possibility of bias
• carefully analyze the data gathered
• support the results with knowledgeable, reliable expert testimony

If you are considering the use of trademark surveys in your infringement litigation, consumer research studies and expert testimony from Keegan & Donato Consulting will meet the courts’ standards for design, execution and analysis and can serve as powerful evidence in your case. Call us at (914) 967-9421 to find out how we can help.