Trademark infringement is on the rise. When you are interested in learning how to prove trademark infringement, turn to Keegan & Donato Consulting for the answers you need.
Keegan & Donato Consulting, located in Rye, New York, is a specialty research consultancy that designs and executes consumer-based surveys for attorneys and their clients in the context of intellectual property disputes. Principals Mark Keegan and Tony Donato have more than 25 years of cumulative experience in the field of consumer research.
We have designed, executed, and critiqued hundreds of consumer surveys that have been admitted into evidence in state and federal courts, at arbitration, to the TTAB, the NAD, and other specialty venues. We also have extensive testimony experience.
Proving Trademark Infringement
Trademark owners who claim infringement are generally required to establish two elements: (1) that the defendant used the registered mark in commerce; and (2) that the use is likely to cause consumer confusion. In many cases, the most persuasive evidence of infringement comes from a consumer research survey.
A likelihood of confusion survey conducted by Keegan & Donato Consulting will address the issue of consumer confusion from a scientific perspective, providing direct evidence of the extent to which consumers believe that certain brands emanate from the same source or are somehow related.
Could a Survey Help Your Case?
Although good survey evidence can be powerful, consumer surveys are not typically accepted without challenge. Courts require accurate, real-world data, and poor designs and methodological flaws can result in partial or full exclusion of survey evidence from a case.
In Parks, LLC v. Tyson Foods, Inc., 2015 WL 4545408, No. 5:15–cv–00946 (E.D. PA. May 10, 2016), for example, plaintiff Parks claimed that the defendant’s “Park’s Finest” sausages and hot dogs infringed on its “Ball Park Franks” brand.
The Court was critical of methodological flaws in a consumer survey submitted by Parks. It “was not probative of secondary meaning” and “was not directed at the appropriate universe of consumers.” Tyson Foods, on the other hand, introduced a consumer survey that showed little evidence of consumer confusion between its Park’s Finest sausages and Parks brand sausages. Tyson Foods prevailed.
If you are thinking you may not need a survey for your trademark litigation, consider that a number of court decisions have drawn negative inferences from the absence of survey evidence.
For example, in Pharmacia Corp. v. Alcon Labs, Inc., 201 F.Supp. 2d 335, 373 (D.N.J. 2002), the court noted that, “Pharmacia is not legally required to conduct a confusion survey. But … 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.”
Find out how to prove trademark infringement and how your case could benefit from the extraordinary knowledge of Keegan & Donato Consulting. Get in touch with us at (914) 967-9421 to learn more about our services.