Independent, best-in-class research in
support of trademark litigation
LIKELIHOOD OF CONFUSION
For trademark or trade dress, we offer surveys to determine the extent of confusion. Typically following either an Eveready or Squirt methodology, in line with established legal precedent, we seek to understand the level of confusion within the interested universe of consumers.
We have expertise in research addressing both forward confusion and reverse confusion, and use best-in-class research practices far surpassing Daubert standards to offer reports with high evidentiary weight.
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Often the basis of class action lawsuits, we specialize in False Advertising surveys. False advertising, either in traditional marketing or on trade dress, is often called into scrutiny for causing misleading purchases from an interested universe.
Our survey methodology seeks to understand the purchase rationale for a given product, through stated and latent tests. We isolate the claims in question to understand if they have a material impact on purchase, and if so, how much of the purchase decision is attributable to the false advertising.
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In cases where a trademark may or may not be considered descriptive, we conduct Secondary Meaning surveys to understand the distinctiveness of the mark among an interested universe of consumers.
In line with legal precedent, our studies determine whether a trademark is associated with one or more than one company. In certain cases, we may ask the company that the mark is associated with.
Given the heightened bar for fame/distinctiveness as put forth in the TDRA in 2006, we offer trademark dilution surveys to assess two critical criteria of the marks. First, we seek to understand whether a junior mark intended to create association with a senior mark. Secondly, we seek the degree of similarity between the junior and senior marks and distinctiveness of the senior mark.
While case law is not as established as in other types of trademark testing, we generally rely on blurring surveys to understand whether the mark has become associated with more than one type of good, or tarnishment surveys to understand whether the mark is dilution by association with inferior or salacious content.
In cases where a trademark may have lost its distinctiveness, we conduct genericness surveys to understand the distinctiveness of the mark among an interested universe of consumers, specifically whether it is viewed as a brand name or not.
In line with legal precedent, we predominantly use either the Teflon format or Thermos format to test for genericness. In certain cases, we may ask the company that the mark is associated with.
Within the past five years, surveys have become paramount to quantify damages within patent cases. Cutting-edge analytics have created a way to measure the individual impact of any element of the consumer purchase decision, including patented features.
We leverage conjoint analysis, which exposes consumers to a series of hypothetical purchase decisions each offering an iteration of the product, which may include the patented feature. By exploring how this feature interacts with other elements of the offer, including brand, price, and pack size, we are able to isolate the impact of the patented feature on the holistic purchase decision. This serves as a baseline for interpreting damages.