Trademark surveys are highly susceptible to criticism from opponents and the courts. Keegan & Donato Consulting builds best practices into survey design and analysis to provide clients with litigation surveys, survey rebuttals, and expert testimony in a wide range of matters.
The vast experience of Keegan & Donato Consulting includes conducting consumer surveys to test a wide variety of Lanham Act claims, such as likelihood of confusion, strength of mark, secondary meaning, acquired distinctiveness, trade dress, and others, false and deceptive advertising, consumer perception, and expert witness testimony on consumer survey, marketing and economic issues.
Principals Mark Keegan and Tony Donato offer more than 25 years of combined experience and education in consumer-based survey research and data analysis in the context of intellectual property disputes, and follow a solid methodological foundation in survey design, execution and presentation.
We can work within your budget to deliver the survey evidence you need, and have been engaged by leading IP litigators such as Riemer & Braunstein LLP in Boston, Schepisi & McLaughlin, PA in New Jersey, Girard Gibbs LLP in San Francisco, Day Pitney LLP in New York City, and attorneys throughout the nation.
What Our Surveys Can Measure
Keegan & Donato Consulting designs and executes consumer surveys to ensure that the evidence you introduce in your trademark infringement case will hold up to scrutiny from courts and opposing experts.
Confusion: One of the foremost purposes of a trademark is to prevent consumer confusion. With a mounting number of brands competing for share of mind in the marketplace, however, some confusion is inevitable. A well-executed standard or custom survey from Keegan & Donato Consulting can help you assess whether consumers are indeed confused.
Secondary Meaning: Descriptive marks are not typically protectable as trademarks unless they have acquired a secondary meaning. We design consumer research surveys that target relevant consumers in your client’s market and help you determine the extent to which consumers associate a contested mark with one or more sources.
Strength of Mark: The “strength” of a mark has a bearing on the legal protections available to a mark holder. In general, fanciful, arbitrary, and suggestive terms are considered inherently distinctive and are afforded various trademark protections. Descriptive marks are unlikely to achieve trademark protection because they lack sufficient distinction to be associated by consumers with one source.
Dilution: 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.
False Advertising: Issues raised in the Lanham Act, such as false advertising or labeling, are well-suited to testing through consumer surveys by addressing the ways in which consumers interpret – and misinterpret – names, symbols, and other marks used by businesses in commerce.
Trade Dress: 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.
If you are interested in a trademark survey for IP litigation support, contact Keegan & Donato Consulting at (914) 967-9421 to learn more about our practices in survey design and analysis, and explore our affordable services.