A claim of trademark dilution does not require a showing of confusion. But there are other hurdles a trademark owner must overcome. A well-designed consumer research study by Keegan & Donato Consulting can determine whether an alleged trademark infringement is having a real-world impact on consumers.
Keegan & Donato Consulting designs and executes consumer survey research studies and collaborates on a wide range of marketing and complex commercial litigation issues.
We offer a combined 25+ years of experience in conducting consumer research studies in the context of intellectual property disputes and provide nationwide services in these and other areas:
- State-of-the-art survey design and execution
- Full-service data gathering and reporting capabilities
- Pilot studies and exploratory research
- Damages analysis and forensic economic analysis
- Collaboration on complex commercial litigation issues
- Critique and rebuttal of opposing experts’ studies and reports
- Advice on deposition and trial questioning of opposing experts
The Fame Standard
Under the Lanham Act, only “famous” trademarks can be protected from dilution, so the first step is to determine whether the mark in question is widely recognized by the general consuming American public as a designation of source of the goods or services of the mark’s owner.
The law outlines these factors to assist courts in determining fame:
- the duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or by third parties
- the amount, volume, and geographic extent of sales of goods or services offered under the mark
- the extent of actual recognition of the mark
- whether the mark is registered
If a famous mark is not inherently distinctive, survey evidence may be used to evaluate the degree of similarity between two marks and to measure a mark’s degree of recognition in the minds of consumers. A secondary meaning survey may be used to measure a mark’s acquired distinctiveness. And dilution surveys may be used to establish the existence of actual association between the marks at issue.
Cost of Trademark Surveys
Keegan & Donato Consulting’s consumer research studies are custom-designed to meet the needs of each individual case. This often involves targeting specialized populations of respondents and developing unique designs to address the specific issues of importance in the case, factors that affect the time and level of difficulty of executing a study, as well as its overall cost.
Most of our consumer studies cost between $30,000 and $80,000 to complete, and $55,000 is the most typical cost. We work on a fixed rate or hourly basis depending on your needs and will work with you to design a survey that is both reliable and within your budget. We will always provide you with an estimate of project costs prior to engagement.
If you are seeking a reliable and defensible consumer research survey to address dilution or confusion issues in your trademark litigation, call Keegan & Donato Consulting at (914) 967-9421 to take advantage of our incomparable expertise.