False Advertising
Survey Evidence

Scientific Consumer Surveys for Trademark Litigation: Understanding and Addressing Likelihood of Confusion Across Industries

False advertising cases often turn on what consumers actually take away from a challenged claim.

Keegan & Donato Consulting helps attorneys evaluate, develop, critique, and defend consumer survey evidence in false advertising disputes, Lanham Act matters, and related consumer perception litigation. Our work helps legal teams determine whether an advertising claim, product label, package, website, disclosure, endorsement, or marketing message is likely to mislead relevant consumers, and whether the resulting evidence can support the theory of the case.

Scientific Consumer Surveys for Trademark Litigation, Likelihood of Confusion

survey design for Likelihood of Confusion

Because the circumstances of each case are unique, we approach survey design on a case-by-case basis.

Consumer Surveys for False Advertising Litigation

In false advertising litigation, the central question is rarely limited to what the advertiser intended to say. The question is often what consumers actually understood.

A claim may seem clear to the company that made it, misleading to a competitor, and ambiguous to the consumers who encounter it in the marketplace. Survey evidence helps attorneys move beyond competing interpretations by measuring how relevant consumers perceive, understand, and respond to the challenged communication.

Keegan & Donato Consulting designs consumer surveys for attorneys handling false advertising claims, Lanham Act disputes, consumer perception matters, and related litigation. Our surveys are built to address the legal theory at issue, the relevant consumer audience, the marketplace context in which the claim appears, and the evidentiary burden the survey may need to satisfy.

Survey evidence may help attorneys assess whether:

Consumers take away the message alleged in the case
The challenged statement is likely to mislead a meaningful portion of the relevant audience
An implied message is communicated even though it is not stated directly
A disclosure, disclaimer, or qualifier changes consumer understanding
The claim is material to consumer decision-making
The advertising affects purchase interest, perceived value, product expectations, or marketplace behavior
An opposing survey reliably measures the right question, population, and stimulus

The value of the survey depends on whether the research question has been translated properly from the legal claim into an empirical design. That is where litigation-focused survey expertise matters.

False Advertising Under the Lanham Act

Section 43(a)(1)(B) of the Lanham Act, codified at 15 U.S.C. § 1125(a)(1)(B), provides a federal cause of action involving false or misleading descriptions or representations of fact in commercial advertising or promotion.

In general terms, a plaintiff in a Lanham Act false advertising case must show that the defendant made a false or misleading statement of fact in commercial advertising or promotion, that the statement actually deceived or had the capacity to deceive a substantial segment of the relevant audience, that the deception was material to consumer purchasing decisions, that the statement entered interstate commerce, and that the plaintiff suffered or was likely to suffer injury as a result.

For survey purposes, one of the most important distinctions is between literal falsity and implied falsity.

A literally false claim contains a factual misstatement apparent from the face of the claim. In some circumstances, courts may find liability without consumer survey evidence. An impliedly false claim, by contrast, may be literally true or facially ambiguous while still communicating a misleading message to consumers. In those cases, survey evidence is often central because the attorney must show what consumers actually take away from the challenged communication.

The Supreme Court’s decision in Lexmark International, Inc. v. Static Control Components, Inc. (2014) also remains important to Lanham Act false advertising strategy. Lexmark refined standing by applying a zone-of-interests test and a proximate cause standard. For survey evidence, the practical point is that consumer perception does not stand alone. The evidence is most useful when it helps connect the challenged claim, consumer understanding, materiality, and marketplace harm.

Measuring Consumer Takeaway

False advertising disputes often depend on consumer takeaway: the meaning consumers receive from the challenged claim in context.

That takeaway may come from the words of the claim, but it may also come from layout, images, emphasis, comparisons, omissions, qualifying language, product packaging, seals, endorsements, website design, or the surrounding marketplace presentation.

Keegan & Donato Consulting designs surveys to measure consumer takeaway carefully. The goal is not to make a claim appear more or less misleading than it is. The goal is to produce reliable evidence of how the relevant audience understands the challenged communication.

Depending on the case, a survey may test whether consumers perceive a claim as factual, comparative, implied, exaggerated, aspirational, promotional, or supported by particular evidence. It may also test whether consumers understand the claim in the way the plaintiff alleges, the defendant intends, or in some other way that affects the litigation strategy.

A useful false advertising survey must be tied to the actual dispute. It should measure the relevant claim, among the relevant consumers, under conditions that reasonably reflect how the communication is encountered in the marketplace.

Survey Design for False Advertising Claims

Courts and opposing experts often scrutinize the design choices behind a false advertising survey. Those choices can affect both admissibility and weight.

The survey universe must reflect the relevant market. In many false advertising cases, the appropriate respondents are current or prospective purchasers of the product or service category at issue. A survey that includes the wrong population may fail to measure the perceptions of the consumers whose understanding matters to the case.

The stimulus must also be designed with care. A survey that isolates one phrase from an advertisement, label, package, website, or disclosure may overstate the attention consumers give that phrase. In many cases, the challenged communication should be presented in a way that reflects the real marketplace context.

Controls can also be critical. A properly designed control condition may expose respondents to a version of the communication that is identical to the test stimulus except that the challenged element has been removed, neutralized, or modified. This allows the survey to estimate the effect of the challenged claim apart from background beliefs, prior assumptions, or other features of the advertisement or package.

Question wording matters as well. Leading or suggestive questions can make a survey vulnerable to challenge. A reliable survey should avoid disclosing the desired answer, should distinguish between unaided and aided responses where appropriate, and should measure consumer perception rather than attorney argument.

False Advertising Claims We Help Attorneys Evaluate

False advertising survey evidence may be relevant to many types of marketplace claims and communications, including:

Product performance claims
Comparative advertising claims
“Clinically proven,” “doctor recommended,” or science-based claims
“Natural,” “clean,” “green,” “eco-friendly,” and sustainability claims
Ingredient, formulation, origin, or source claims
Pricing, savings, discount, and value claims
Packaging and labeling representations
Website, landing page, and digital advertising claims
Disclosures, disclaimers, and qualifying language
Omissions and implied messages
Endorsements, testimonials, certifications, seals, and sponsored content
Consumer reviews and review-related representations

Each category presents different survey design issues. The survey must be grounded in the specific legal theory, the challenged message, the relevant audience, and the marketplace setting in which consumers encounter the claim.

Daubert, Reliability, and Litigation Scrutiny

False advertising survey evidence is often challenged under Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) and related standards governing expert testimony. Courts may examine whether the survey is grounded in sufficient facts or data, reflects reliable principles and methods, and applies those methods reliably to the facts of the case.

Common challenges include an improper survey universe, inadequate sample size, unrealistic stimulus presentation, leading question wording, lack of a proper control, failure to replicate marketplace conditions, and conclusions that go beyond the data.

In many cases, methodological flaws affect the weight of the evidence rather than admissibility. In other cases, serious design problems can lead to exclusion or substantially reduce the value of the survey. For attorneys, that makes early survey planning important. The research design should anticipate how the survey will be evaluated by the court, opposing counsel, and opposing experts.

Keegan & Donato Consulting approaches survey design with that scrutiny in mind. We focus on clear research questions, appropriate respondent populations, realistic stimuli, defensible controls when needed, careful question wording, transparent analysis, and conclusions that remain within the limits of the data.

Survey Evidence and the Theory of Implied Falsity

In implied falsity cases, survey design must do more than ask whether consumers understand the words in an advertisement.

The survey should be tied to the specific misleading message alleged in the case. A claim may be literally true but still imply something false or unsupported. The relevant question is not simply whether consumers can define the words used in the advertisement. The question is whether the challenged communication conveys a misleading impression to a meaningful portion of the relevant audience.

This distinction matters in comparative advertising, product composition claims, environmental claims, scientific support claims, and endorsement-related disputes. In Mead Johnson & Co. v. Abbott Laboratories (7th Cir. 2000), the court addressed limits on survey evidence where consumer misunderstanding of a literally true claim was not enough, by itself, to establish false advertising liability. In Merisant Co. v. McNeil Nutritionals LLC (E.D. Pa. 2007), survey evidence concerning Splenda’s “Made from Sugar” advertising was evaluated in relation to whether the advertising implied attributes the product did not possess.

These cases underscore a practical survey-design point: a survey that measures general comprehension may not answer the litigation question. A survey that measures the alleged implied takeaway, materiality, and consumer response is more likely to assist the attorney, the expert record, and the court.

Consumer Reviews, Endorsements, and Sponsored Content

False advertising disputes increasingly involve consumer reviews, endorsements, testimonials, influencers, social media tags, seals, certifications, and sponsored content.

The Federal Trade Commission’s revised Guides Concerning the Use of Endorsements and Testimonials in Advertising, along with the FTC’s 2024 Rule on the Use of Consumer Reviews and Testimonials, have increased attention on material connections, review manipulation, and the way consumers interpret endorsements or review-related representations.

In litigation, the relevant issue may be how consumers understand the endorsement, whether they perceive a material connection, whether a disclosure is noticed and understood, or whether the presentation of reviews creates a misleading impression. Survey evidence can help attorneys evaluate those questions when consumer perception is central to the claim.

When Attorneys Should Engage a Survey Expert

Timing can affect the quality and usefulness of survey evidence.

A survey prepared for a preliminary injunction may need to be completed under substantial time pressure. That can limit design options, including the opportunity to pilot the survey instrument or test alternative wording. Engaging a survey expert early gives the legal team more flexibility and reduces the risk that the research design appears to be reverse-engineered around a litigation position.

Early expert involvement can also help attorneys define the empirical question before positions harden. The attorney may know the legal theory, but the survey expert helps translate that theory into a testable research design. That translation is often where weak surveys fail.

At the outset, attorney and expert should address:

The specific challenged claim or communication
The alleged misleading takeaway
The relevant consumer population
The marketplace context in which the claim appears
The role of disclosures, disclaimers, or qualifying language
The need for a control condition
The available timing, budget, and procedural constraints
The way the survey may be used in reports, depositions, motion practice, settlement, or trial

A well-defined research question improves the usefulness and defensibility of the survey.

How Survey Evidence Can Support False Advertising Litigation

Survey evidence can assist attorneys at multiple stages of a false advertising case.

Before filing or early in the dispute, a survey may help evaluate claim strength, litigation risk, settlement posture, or the need for additional evidence. During active litigation, a survey may support an expert report, rebuttal report, deposition strategy, motion practice, preliminary injunction proceedings, class certification issues, or trial presentation.

Survey evidence is especially useful when the parties disagree about what a claim communicates. Rather than relying only on internal intent, attorney interpretation, or anecdotal reactions, a properly designed survey can measure how the relevant audience understands the challenged message.

Reliable survey evidence can help attorneys understand what the data supports, what it does not support, and where the case may be vulnerable.

Rebuttal of False Advertising Surveys

False advertising cases often involve opposing survey evidence. Keegan & Donato Consulting also critiques and rebuts surveys submitted by opposing experts.

Our rebuttal work may evaluate whether the opposing survey:

Used the appropriate consumer universe
Tested the relevant claim or a different question
Presented the challenged communication fairly
Reflected actual marketplace conditions
Used an appropriate control
Avoided leading or suggestive questions
Measured consumer takeaway rather than speculation
Properly analyzed open-ended responses
Drew conclusions supported by the data
Disclosed enough information for replication and evaluation

A survey may be flawed in ways that affect its evidentiary value. It may test the wrong population, exaggerate the challenged message, isolate the claim from context, ask questions that reveal the desired answer, or interpret responses more broadly than the data allows.

Careful rebuttal helps attorneys understand those weaknesses and explain how they affect the survey’s reliability, relevance, and usefulness.

Independent Survey Evidence for False Advertising Disputes

Keegan & Donato Consulting works with attorneys who need independent, methodologically sound consumer research for false advertising litigation and related Lanham Act claims.

Our role is to help legal teams evaluate what consumers understand, what the evidence can support, where opposing survey evidence may be vulnerable, and how consumer perception fits into the broader litigation strategy.

If your case involves a challenged advertising claim, product label, package, website, disclosure, endorsement, review presentation, or other marketing communication, consumer survey evidence may help clarify the issues that matter most.

Contact Keegan & Donato Consulting to discuss whether survey evidence can support, test, or challenge the false advertising theory in your case.

Do you have a case that involves false advertising?

Would your case benefit from knowing how consumers understand a challenged advertising claim, product label, package, website, disclosure, or marketing message?

Call us to find out whether consumer survey evidence can support, test, or challenge the false advertising theory in your case.