Trademark surveys are highly susceptible to criticism, and courts take care to verify whether the design or methodology was flawed in any way. Keegan & Donato Consulting builds best practices into our survey designs to ensure that they are reliable and methodologically sound.
About the Firm
Located in Rye, New York, Keegan & Donato Consulting offers a wide range of services to plaintiff and defendant clients, including consultation on litigation strategy, consumer research studies, testimony in trademark and trade dress litigation, testimony at deposition and/or trial, expert reports, and rebuttal of opposing parties’ surveys when applicable.
Principals Mark Keegan and Tony Donato have 25+ years of combined experience in the consumer research field as well as extensive testimony experience. Their credentials include:
- Juris Doctor from Brooklyn Law School (Keegan)
- Bachelor of Arts in History from Pace University (Keegan)
- Member of the New York and Connecticut Bar Associations (Keegan)
- Master of Public Policy from Georgetown University (Donato)
- Bachelor of Arts in Politics from Ursinus College (Donato)
- Co-author of peer-reviewed journal articles (Donato)
About Our Survey Methodology
At Keegan & Donato Consulting, we employ both classic survey designs and develop innovative custom survey designs to suit each client’s needs and consider methodological design among the most critical aspects of designing a consumer research study. Some of our best practices include:
- Appropriate universe selection and sampling frame;
- Inclusion of representative, qualified respondents;
- Use of objective, non-leading questions;
- Use of procedures to reduce guessing among respondents;
- Use of procedures to minimize potential biases in data collection; and
- Full analysis and reporting of survey data.
Our industry-leading online survey software platform facilitates the programming and execution of advanced survey designs, including complex skip logic and advanced rotation and randomization of questions, answer options, and stimuli.
Why Hire a Survey Expert?
When confronted with poorly designed, unscientific surveys, judges can be harsh and the evidence may be given little weight by the court or partially or completed excluded.
In Black & Decker Corp. v. Positec USA Inc., 1:11-cv-5426, Dist. Court, N.D. Illinois, Eastern Division (2017), for example, flawed survey evidence resulted in the Court tossing out an earlier jury verdict and $53.9 million award and ordering a new trial.
The Court determined that the likelihood of confusion survey proffered by the Plaintiff was “so informally designed and conducted that it fails key tests of professionalism and reliability” and should have been excluded from trial.
“Even if … the survey was not the sole evidence on likelihood of confusion in the trial record, it was the linchpin of Plaintiffs’ case on likelihood of confusion— an issue that was hotly contested at trial. Given that Plaintiffs presented no evidence that any consumers were actually confused about the origin of Defendants’ goods, there is a high probability that [the expert’s] flawed testimony unfairly influenced the jury’s verdict… and admission of the survey and [the expert’s] testimony about the survey was fundamentally unfair to Defendants.”
Results like these mean that it’s extremely important to hire qualified survey experts, such as Keegan & Donato Consulting, for your litigation. If you are interested in a trademark survey for IP litigation support, contact us at (914) 967-9421 to learn more about our survey design best practices and explore our affordable services.