Trademark infringement is a serious concern for businesses of all sizes. Using survey research to prove infringement can be a powerful tool. Hiring qualified experts, such as Keegan & Donato Consulting, will impact whether the Court deems your survey results admissible.
Located in Rye, New York, Keegan & Donato Consulting serves clients across the nation. We work on behalf of plaintiffs and defendants to provide research, analysis, affidavits, declarations, expert reports, and rebuttal reports as needed in intellectual property disputes. We have collaborated extensively on cases involving various marketing, business, and financial issues.
Our surveys have been admitted into evidence in federal and state courts, at arbitration, and to the TTAB, the NAD, and other specialty venues. We have also testified extensively at deposition and at trial.
In Elliott v. Google, Inc., 45 F. Supp. 3d 1156 – Dist. Court, D. Arizona (2014), the Court deemed the plaintiff’s surveys inadmissible because they were determined to be unscientific and poorly constructed. The survey expert was also rejected as unqualified “to design a survey or to interpret survey results.”
At Keegan & Donato Consulting, we consider methodological design among the most critical aspects of designing a consumer research study. We have conducted and critiqued hundreds of studies across industries ranging from designer apparel to high-end audio products and everything in between.
We obtain high-quality information from a representative sample of the targeted population and have strict procedures to minimize potential biases in data collection. Survey samples are obtained from prominent marketing research companies that maintain multi-million-member online consumer panels.
Do You Really Need a Consumer Survey?
You may decide to proceed to litigation without survey evidence for strategic reasons. Perhaps the client can’t afford to invest in a survey. Perhaps your pilot survey failed to produce adequate results. Or, maybe your adversary’s consumer survey is so flawed that you hope a rebuttal expert can critique the results without conducting another survey.
Regardless of the reasons, there can be consequences to proceeding to litigation in a trademark infringement matter without survey evidence conducted by trained independent experts using sound methodologies.
Some court decisions have drawn adverse inferences from the absence of survey evidence, including:
Pharmacia Corp. v. Alcon Laboratories, Inc., 201 F.Supp. 2d 335, 373 (D.N.J. 2002). In this case, the Court noted that “Pharmacia is not legally required to conduct a confusion survey. But under the circumstances of this case, Pharmacia’s failure to conduct any confusion survey weighs against its request for a preliminary injunction. Such a failure, particularly when the trademark owner is financially able, justifies an inference that the plaintiff believes the results of the survey will be unfavorable.”
Likewise, in King-Size, Inc. v. Frank’s King-Size Clothes, Inc., 547 F.Supp. 1138, 1162 (S.D. Tex. 1982), the Court noted that “Plaintiffs did not present to the Court a survey or any other direct evidence of actual confusion. The Court views these omissions as both suspect and significant.”
Using survey research from Keegan & Donato Consulting to prove trademark infringement can provide objective evidence of consumer confusion, a critical element in establishing infringement. Get in touch with us at (914) 967-9421 to find out how we can help.