Trademark infringement is a significant concern for businesses that invest time, effort, and resources in developing a brand identity. Using consumer surveys to prove infringement at trial can be an effective tool, and Keegan & Donato Consulting can help.
Keegan & Donato Consulting specializes in trademark and trade dress analyses and surveys. We have designed and critiqued hundreds of consumer research studies across various industries for cases in federal court, state court, the TTAB, the NAD, arbitration hearings, and other specialty venues.
We have designed surveys for firms that manage some of the world’s largest trademark portfolios, such as Arnold & Porter LLP in San Francisco, Morgan, Lewis & Bockius LLP in Boston, and Fox Rothschild LLP in New Jersey and Philadelphia. Our litigation surveys have been accepted as evidence in matters involving many different types of products and services.
Consumer Survey Types and Their Uses
Courts have accepted various types of surveys as evidence in trademark infringement cases. They include:
Likelihood of Confusion surveys measure the degree of similarity between two marks and the products or services they represent. They help assess whether consumers will likely be confused between marks by asking participants whether they believe the marks belong to the same or different companies.
Secondary meaning occurs when consumers associate an otherwise descriptive mark with a single source. It can be measured through a consumer survey and may provide a strong indication that a mark has become a distinctive identifier of a brand in the minds of consumers.
Acquired distinctiveness can be measured with consumer survey research. When a mark acquires distinctiveness, it becomes capable of serving as a trademark by associating in the mind of consumers with a particular source of goods and services. This usually happens as a result of extensive advertising and commercial use.
Should You Hire a Survey Expert?
There are methodological shortcomings that can affect surveys. When this occurs, the court may afford them little or no weight as evidence. To avoid this serious pitfall and ensure that the survey can withstand litigation rigors, hiring qualified survey experts like Keegan & Donato Consulting is crucial.
For example, 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 survey experts and two of the defendant’s three experts. The court determined the surveys to be unreliable, plagued by significant methodological flaws, and concluded that “any probative value was substantially outweighed by the danger of unfair prejudice and misleading the jury.”
To prove trademark infringement, companies often consider using consumer surveys to prove their claims. Keegan & Donato Consulting can help you prove or disprove infringement in support of your case. Our team works on a fixed-rate or hourly basis and will help you design a methodologically sound consumer study. Get in touch with us today at (914) 967-9421.