A company protects its identity, it's processes, and it's knowledge through the legal system under the umbrella of intellectual property. Questions arise as to whether there is a loss or a taking, a diminution in the value held because of the actions of others, and if there is a loss or diminution, what was that loss worth to the owner of the property.
In trademark infringement cases, we help determine whether there is confusion or the likelihood of confusion through the use of surveys and the application of other research techniques designed to measure consumer reactions. When appropriate, we also consider whether the mark has taken on a secondary meaning and whether any alleged infringement may have contributed to the dilution of the mark. If there is a likelihood of confusion, we can also attempt to measure monetary damages in the form of diverted sales.
Trade dress cases are similar in nature, except they frequently require a more direct interaction with the respondent in a survey or experiment. If there is confusion in trade dress, it has to be visually observed. Our firm is the first to have Internet surveys accepted in Federal court as a means of displaying and comparing items that are allegedly protected by trade dress with the accused infringing items. Internet surveys give the researcher the unique ability of controlling how items can be randomly displayed to the survey respondent and at the same time controlling the population to be contacted for such an inquiry.
For patent infringement cases, the infringement is likely to be determined by experts in the particular subject and technical area where the appropriate knowledge of the patent can be applied. A complementary area of expertise is needed, however, to determine what monetary damages may be. We've conducted such investigations, combining survey methods with an analysis of diverted sales, a valuation of the expected future value of the patent, and comparison of values calculated by considering whether the protected technology is to be used by the patent holder, leased to a single user, or made available to multiple leasers.
In short, intellectual property research is a combination of skills involving experiments, surveys, and economic and financial valuations - skills not found combined in most firms.
A manufacturer of liquid energy drinks filed suit against another manufacturer of liquid energy drinks, claiming that the shape and type on the bottles of the defendant caused confusion among potential purchasers.
Issue was that Pennsylvania based Community Banks, a multi-state bank, opened branches in Northern Maryland. Community First Bank claimed it already had a charter in Maryland and the intrusion of Community Banks diminished the value of their name.
Smith & Nephew v. Zimmer. Infringement claimed on a feature of a hip replacement “cup†and “stemâ€, and feature was machining of cup to minimize friction. We conducted a survey of physicians to determine what features were important to the selection of a hip replacement and used the survey to calculate damages.
