Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced firms in the field of trademark litigation. We can help you understand what to avoid when conducting trademark surveys to use as evidence in your infringement case.
Principals Mark Keegan and Tony Donato offer clients 25+ years of combined experience and impeccable credentials in consumer-based survey research and data analysis, and follow a solid methodological foundation in survey design, execution and presentation.
The firm is a member of the International Trademark Association (INTA), the American Marketing Association (AMA), the American Association for Public Opinion Research (AAPOR), the Association for Consumer Research (ACR), and ESOMAR, the leading global association for market, social and opinion researchers.
Mr. Keegan is an AMA Professional Certified Marketer and has worked with top brands as a marketing strategist helping to position them in the market and create innovative online advertising solutions.
Mr. Donato has served as a consultant in complex litigation matters and has a background in marketing, intellectual property, and consumer behavior cases covering trademark, copyright, patent, best efforts, advertising, consumer surveys, business damages, and business marketing ethics.
Avoid Survey Pitfalls
Consumer surveys are common in Lanham Act cases and are the most direct method of showing a likelihood of confusion among consumers in trademark infringement cases.
Surveys can also be a very useful tool for brands who want to gauge consumer perception of products or services; evaluate the buying habits of a target market; test the marketplace for a new brand name, logo, or idea; and other key marketing issues.
While surveys can serve as persuasive evidence, an overly broad survey that fails to address the key issues in a case, even if based on a standard methodology, may be deemed inadmissible by the Court or given little weight.
Surveys are often found by courts to contain significant flaws, such as asking leading, suggestive or ambiguous questions, under-inclusive or over-inclusive sampling of the consumer universe, sampling from the wrong geographic area, and so on. These flaws can reduce or destroy the credibility of the survey.
In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), for example, there is a lengthy discussion about why the Court determined that survey evidence submitted by the defendant in this trademark infringement and unfair competition case, “had too many methodological flaws to be of any probative value.”
For these reasons, we highly recommend hiring qualified survey experts. Keegan & Donato Consulting’s methodologically sound consumer research studies and expert testimony will meet the courts’ standards for design, execution, and analysis and serve as powerful evidence in your case.
Learn what to avoid when conducting trademark surveys for your infringement litigation from the experts at Keegan & Donato Consulting. Get in touch with us today at (914) 967-9421 to explore our affordable services.