Consumer surveys can be extremely useful in proving trademark violation by helping determine, for example, whether competing marks are likely to confuse consumers, whether a descriptive mark has acquired secondary meaning, whether a mark is famous, and whether one mark is likely to dilute a competing mark. Keegan & Donato Consulting will work within your budget to deliver the assistance you need.
Keegan & Donato Consulting is a specialty research consultancy and one of the most experienced firms in the field of trademark litigation. 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.
What Issues Can Be Measured by Trademark Surveys?
Surveys are valuable tools in litigation because they provide insight into actual consumer perceptions, often when no other scientific evidence is available. By exposing consumers to relevant stimuli and gauging their reactions, it is possible to measure their attitudes and behaviors, and understand how they understand the relevant issues in the case.
Likelihood of confusion is a common issue addressed by consumer survey research. A well-designed survey can provide direct scientific evidence of the extent to which consumers believe there is a relationship between the plaintiff’s and the defendant’s mark, brand, or product.
Secondary meaning, which occurs when consumers associate an otherwise descriptive mark with a single source, can be measured by means of a consumer research study, and may provide a strong indication that a mark is no longer descriptive and has become a distinctive identifier of a brand in the minds of consumers.
Trademark dilution occurs when an infringing party uses a famous mark in a way that tarnishes the mark’s reputation for quality or dilutes its strength by blurring its distinctiveness. Consumer recognition of a famous mark can be measured directly by a survey.
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 widespread commercial use.
False advertising is well-suited to testing through consumer research by addressing the ways in which consumers interpret—and misinterpret—names, symbols, and other marks used by businesses in commerce.
Trade dress, like a trademark, is protectable under the Lanham Act. Conducting a consumer survey can help you gather the evidence to prove whether the trade dress in question has established secondary meaning or is likely to cause confusion in the marketplace.
Trademark survey companies like Keegan & Donato Consulting can assist you in proving a trademark violation as part of your infringement case strategy. Contact us at (914) 967-9421 to explore our capabilities.