A trademark survey designed and executed by Keegan & Donato Consulting can provide you with reliable empirical data about the key claims driving your intellectual property case.
Keegan & Donato Consulting has extensive experience in the design, execution, and critique of consumer research studies that have been admitted into evidence in state and federal courts, at arbitration, the NAB, and the TTAB. Principals Mark Keegan and Tony Donato also have extensive testimony experience.
We are a specialty research consultancy and are members of ESOMAR, the leading global association for market, social and opinion researchers, the International Trademark Association (INTA), and the American Marketing Association (AMA). Mr. Keegan is an AMA-designated Professional Certified Marketer.
Trademark & Trade-Dress Surveys
Keegan & Donato Consulting specializes in a wide range of trademark and trade-dress analyses and surveys in conjunction with IP litigation, including:
- Lanham Act Claims
- Likelihood of Confusion
- Secondary Meaning
- Strength of Mark
- Acquired Distinctiveness
- Survey Critiques and Rebuttals
Our research is focused on collecting empirical data from relevant consumers through methodologically-sound, scientific, industry-accepted principles of survey research.
Our Survey Capabilities
Surveys in trademark matters are complex and must adhere to strict standards:
- The survey population must be properly chosen and defined and utilize a sample that accurately represents the population.
- The questions asked must be clear, concise and unambiguous.
- The data must be accurately collected and reported.
- The data must be analyzed against statistical principles.
- The survey process must be conducted with a goal of maintaining objectivity.
Keegan & Donato Consulting obtains survey samples from prominent marketing research companies that are top providers of survey sample in the U.S. and maintain multi-million-member online consumer panels.
Our goal is to obtain high quality information that is a representative sample of the targeted population, and we have stringent procedures in place to minimize potential biases in data collection.
Avoid Survey Pitfalls
Consumer surveys are common in Lanham Act cases and are the most direct method of showing a likelihood of confusion among consumers in trademark infringement cases.
Surveys can also be a very useful tool for brands who want to gauge consumer perception of products or services; evaluate the buying habits of their target market; test the marketplace for a new brand name, logo or idea; and other key marketing issues.
While surveys can serve as persuasive evidence, an overly broad survey that fails to address the key issues in a case, even if based on a standard methodology, may be deemed inadmissible by the Court or given little weight.
Surveys are often found by courts to contain significant flaws, such as asking leading, suggestive or ambiguous questions, under-inclusive or over-inclusive sampling of the consumer universe, sampling from the wrong geographic area, and so on. These flaws can reduce or destroy the credibility of the survey.
In Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1142, 1144-50 (10th Cir. 2013), for example, there is a lengthy discussion about why the Court determined that survey evidence submitted by the defendant in this trademark infringement and unfair competition case, “had too many methodological flaws to be of any probative value.”
It is important to seek out consultants like Keegan & Donato Consulting that offer expertise in trademark survey design and methodologies to ensure that you obtain valid and reliable results. Call us today at (914) 967-9421 to learn how we can help.