Consumer surveys can be a crucial step in trademark and false or deceptive advertising litigation. Keegan & Donato Consulting can work with you to develop a robust case strategy.
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 25+ years of cumulative experience in the field of consumer research. 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.
The firm designs, executes, analyzes, and presents the results of IP litigation surveys, including:
In addition to our survey design capabilities, we provide services in these and other areas:
- Full-service data gathering and reporting
- Marketing, damages and forensic economic analysis
- Collaboration on complex commercial litigation issues
- Pilot studies and exploratory research
- Critique and rebuttal of opposing experts’ studies and reports
- Advice on deposition and trial questioning of opposing experts
False/Deceptive Advertising under the Lanham Act
The Lanham Act, as codified in 15 U.S. Code §1125, is the statutory basis for most trademark claims. The false advertising section (commonly known as Section 43(a)) gives competitors a cause of action against rivals who engage in misleading advertising or labeling.
Issues raised in the Lanham Act are particularly 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. In fact, the evidence derived can be very persuasive.
If you are weighing the value of a hiring highly qualified survey experts such as Keegan & Donato Consulting in support of your case, consider Parks, LLC v. Tyson Foods, Inc. et al, No. 5:15-cv-00946 – Dist. Court, E.D. Pennsylvania (2015).
The plaintiff in this trademark and false advertising dispute argued that defendants Tyson Foods, Inc. and Hillshire Brands Company, owners of the “Ball Park” brand of hot dogs, had “infringed upon its “Parks” trademark and engaged in deceptive advertising and other unlawful conduct” by using the name “Park’s Finest” on its products.
The plaintiff produced a single consumer survey to support both its false advertising claim and its trademark infringement claim. The court determined that there were methodological flaws in the survey that rendered it “unsuitable for supporting a claim of false advertising.” The survey failed to assess the messaging communicated by the defendant’s packaging; it failed to assess whether a consumer would have been deceived by the messaging; and it was not directed at the appropriate universe of consumers.
A survey conducted by the defendants, which the court observed was “not without some flaws of its own,” generally followed the appropriate methodology for testing a claim of false advertising.
If you plan to invoke the protections of the Lanham Act, do not overlook the value of incorporating a well-designed, scientifically sound consumer survey into your case strategy.
Keegan & Donato Consulting will work within your budget to design appropriate trademark and deceptive advertising surveys and deliver the results you need. Get in touch with us today at (914) 967-9421.