The process of trademark litigation can be long and costly. One of the most important aspects of it will be the evidence presented. To establish a likelihood of confusion between trademarks, a party may use consumer surveys as evidence to show that the public is likely to be confused between the two marks. However, surveys presented by one party are often rebutted by the other party with their own surveys. Keegan & Donato Consulting can help.
About Our Firm
Our team serves attorneys in federal and state courts before arbitration panels, the TTAB, the NAD, and other specialty venues. Principals Mark Keegan and Tony Donato offer clients more than 30 combined years of proven survey methodologies, deep operational insight, and broad industry experience.
Mr. Keegan’s background in complex litigation on behalf of clients involving marketing, economics, business, and financial issues, together with Mr. Donato’s background in research, survey design and execution, strategy, and data analysis, create a complementary blend of strategic and analytical skills.
We can quickly deliver intelligence within a wide range of budgets.
What are Rebuttal Surveys?
A rebuttal survey is conducted in response to one presented by the opposing party in a trademark litigation case. Its purpose is to challenge the opposing party’s survey findings and demonstrate to the court that the results are flawed or unreliable. Rebuttal surveys can challenge various aspects of an opposing party’s survey, including the methodology, sample size, sample selection, and questionnaire design.
Can a Rebuttal Survey Help Your Case?
Courts can be harsh when confronted with poorly designed, unscientific surveys and may give them little weight or partially or wholly exclude it. Keegan & Donato Consulting can help you rebut an adversary’s survey evidence by providing guidance about possible flaws and weaknesses in the survey.
In the case of Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. – 507 F.3d 252 (4th Cir. 2007), the plaintiff, Louis Vuitton, the well-known fashion brand, sued the defendant, Haute Diggity Dog, a company that produces dog toys designed to resemble famous luxury handbags, for trademark infringement, claiming that the dog toys were too similar to its own products and would cause consumer confusion.
Haute Diggity Dog argued that its products were a parody and that consumers would not mistake its toys for genuine Louis Vuitton products. The defendant conducted a rebuttal survey to demonstrate that consumers were not likely to be confused between its products and Louis Vuitton products.
The court ultimately found in favor of Haute Diggity Dog, holding that Haute Diggity Dog’s products were clearly intended as a parody and that consumers would not mistake them for genuine Louis Vuitton products. The court cited the survey evidence as a crucial factor in its decision.
In trademark litigation, surveys can be used to establish a likelihood of confusion between two marks, while rebuttal surveys can challenge the validity and reliability of the opposing party’s survey.
Keegan & Donato Consulting offers strategic and analytical expertise and can answer your questions about utilizing rebuttal surveys in trademark litigation. Contact us at (914) 967-9421 to explore our affordable services.