Keegan and Company LLC

Case type: Likelihood of confusion / Intellectual property

In this notable case recently cited in the Trademark Reporter, Dr. Seggev was engaged by the defendant as a rebuttal witness to analyze and opine on the opposing expert's findings of likelihood of confusion. 24 Hour Fitness's expert presented survey evidence suggesting that the name 24/7 Fitness was likely to create likelihood of confusion among consumers in the New York metropolitan area upon 24 Hour Fitness’s entry into the region.

Dr. Seggev’s testimony highlighted multiple methodological weaknesses in the opposing expert’s survey design as well as inconsistencies in the presentation of the survey results. Dr. Seggev testified that had these mistakes been corrected, likelihood of confusion among consumers would have likely been very low.

Judge Ronald L. Ellis cited the "compelling" testimony of Dr. Seggev in determining that no confusion exists between the marks 24 Hour Fitness and 24/7 Fitness.“It is satisfying to know that the court recognized the flaws in the data and that this weighed in on the Judge’s decision,” Dr. Seggev said. To read the full opinion, click here. To read the Trademark Reporter article in which this case is analyzed, click here.

Case type: Likelihood of confusion / Intellectual property

Case summary: Citizens Banking Corporation employed the services of Keegan & Company to design a survey to determine whether Likelihood of Confusion existed between its established mark and the mark of junior user Citizens First Bancorp, a newly renamed competitor in the plaintiff’s market area.

Dr. Seggev designed a comprehensive study that tested the marks of the junior and senior users in both block letter (i.e., plain text) and logo formats. In the study, respondents were asked whether they believed the marks originated from the same or affiliated companies or whether they believed them to originate from unique sources.

The results of Dr. Seggev’s study showed that a high percentage of respondents exposed to the block letter marks and logo marks indicated a same or affiliated source of origin, as opposed to much smaller percentages observed in the control cells. Consequently, Dr. Seggev opined that a significant Likelihood of Confusion existed among the marks at issue in this case.

Dr. Seggev’s findings were instrumental in securing a complete victory for his client. Upon considering Dr. Seggev’s study, along with the other evidence in the record, the court granted the plaintiff’s motion for preliminary injunction, thus requiring the defendant to cease using the contested mark. Click here to read the judge’s order in this case.

Case type: Marketing / Best Efforts

Case summary: Biomet Orthopedics, Inc. and TACT Medical Instruments, Inc. signed an agreement establishing TACT as the exclusive distributor of Biomet’s orthopedic products in Japan. This agreement specified that as sole distributor, TACT would use its “best efforts” to sell Biomet products in the Japanese market.

Keegan & Company was asked to respond to a claim that TACT failed to use its “best efforts” in selling Biomet’s products in Japan. Keegan & Company’s marketing analysis established that TACT had in fact used its best efforts in the Japanese market and that TACT had formulated a marketing strategy and plan that addressed the consumer needs and competitive environment particular to the Japanese market they operated in.

Dr. Keegan found that TACT performed above reasonable expectations given its unique situation. Thus, Dr. Keegan rendered an opinion that Biomet suffered no damages. Dr. Keegan’s analysis and trial testimony contributed to a jury ruling in favor of TACT.

Case type: Brand valuation / Valuation of intangible assets

Case summary: Federal Insurance Company (FIC), a large insurance provider, was sued by Oriental Financial Group (OFG), a large Puerto Rico based banking concern, for alleged damages to the bank’s brand that the bank claimed was the result of FIC’s decision not to make payment on a claim. As a result of the claim denial, OFG restated its earnings and engaged in a large-scale marketing campaign.

Keegan & Company was asked by Federal Insurance Company to determine whether OFG incurred damages as a result of the claim denial. Through analysis of the bank’s financial records and internal documents, Keegan & Company determined that the bank’s earnings restatement did not have a negative effect on OFG’s brand value, and did not necessitate an aggressive marketing campaign. Dr. Keegan therefore concluded that the bank’s damages claim was completely unsubstantiated.

Case type: Marketing Analysis

Case summary: A leading seller of consumer software employed the services of Keegan & Company to critically analyze a competitor’s advertising campaign. The advertisement contained various elements of our client’s logo prompting concerns that consumers would be mislead by the campaign.

Using generally recognized and accepted marketing principles and practices, Keegan & Company analyzed the competitor’s use of our client’s trademark—a well-established and recognized brand image—in its advertisement. Based on this analysis, Dr. Keegan opined that the competitor had misused techniques commonly employed by marketers in conjunction with their own trademarks to create effective advertisements. Further, Dr. Keegan found that the competitor’s ad capitalized on advertising methods that are known to affect the process by which consumers evaluate the available product alternatives and ultimately make purchase decisions.

Case type: Likelihood of confusion / Intellectual property

Case summary: A manufacturer of a consumer dispenser found in public places, and the product that fits inside the dispenser, was involved in litigation with a competing manufacturer. The competitor had been manufacturing and selling product intended to fit inside the dispenser, inducing customers to breach the contract made when purchasing the dispenser.

Keegan & Company was retained to conduct a survey to determine the extent to which the public expected the two components of the system—the dispenser and the product inside—to belong to the same brand or to be affiliated, connected or associated with each other. Dr. Seggev developed a survey methodology in which interviewees who had used the dispenser were asked a series of questions about expectation of source.

Dr. Seggev’s survey showed that an overwhelming majority of respondents expected the dispenser and product inside to share a common source. Based on this finding, Dr. Seggev opined that consumers’ expectations of sameness of source are likely to be upset by replacing a “strong” brand (i.e., our client’s) with a less powerful one (i.e., the competitor). He opined further that any act that lessens the consumer’s experience even slightly may prove injurious to the strong brand.

Case type: Marketing analysis / Damages rebuttal

Case summary: Wyndham International, a large international hotel chain, was the subject of right of publicity litigation filed by a former model who alleged that Wyndham had used his images in marketing materials beyond the expiration of the contract. The plaintiffs sought substantial damages as a result.

Working on Wyndham’s behalf, Keegan & Company reviewed the marketing materials at issue and found that the materials were not widely distributed and were not part of Wyndham’s overall branding message. Dr. Keegan therefore opined that the extensive damages called for by the plaintiffs were unsupported and unreasonable. Dr. Keegan’s rebuttal analysis of the damages model put forth by the plaintiff’s expert contributed to a favorable settlement for Wyndham.

Case type: Damages analysis

Case summary: Glud & Marstrand, a Danish manufacturer of metal containers, developed a proprietary process to manufacture tins to house DVDs. Although protected through a variety of patents, several manufacturers copied the Glud & Marstrand process, manufacturing infringing tins for Microsoft.

Glud & Marstrand called on the services of Keegan & Company to design a model to determine the extent of damages incurred by Glud & Marstrand related to the infringing products. Using data on costs, actual sales, expected sales, pricing, and other factors, Dr. Keegan developed a customized damages model outlining Glud & Marstrand’s lost sales. Dr. Keegan’s damages model contributed to a favorable settlement for our client.

Case type: Likelihood of confusion / Intellectual property

Case summary: In this case, Keegan & Company was asked to determine the presence and extent of Likelihood of Confusion as to the source of a set of Internet advertisements put out by our client and a set of Internet advertisements put out by a competitor.

Using a test/control design, Dr. Seggev developed a survey methodology that exposed respondents to the ads. Depending on whether the respondent was placed in a test group or a control group, they were exposed to either our client’s ad and a competitor’s ad or our client’s ad and a control ad. Respondents were then asked a series of questions about the ads they had seen.

Dr. Seggev found that a large number of our client’s ads exhibited significant Likelihood of Confusion as compared to the test ads. Based on this conclusion, Keegan & Company then derived a damages model which estimated the monetary damages associated with the competitor’s ads. Because the ads generated revenue for the competitor based on the number of times they were clicked, Dr. Seggev was able to use impression data to determine a range of revenues generated by the competitor’s ads. Dr. Seggev opined that damages in this range were appropriate restitution to our client.