Courts are listening to what consumers are saying online

Courts have recognized the probative value of data from online consumer posts in a growing number of cases. We specialize in generating custom reports that can be relied on by experts offering either affirmative or rebuttal opinions in intellectual property and deceptive advertising matters as well as other types of commercial litigation.

Our assignments on behalf of either plaintiffs or defendants may include:


Likelihood of Confusion

Are consumers confused by the alleged infringement? To what extent?

Do consumers try to “pass off” products with the junior mark in the post-purchase environment? Are they successful?

Do consumers draw mistaken associations between the senior and junior mark? How strong is the senior mark?

How much care do consumers put into purchases in this product category?

Secondary Meaning

Do consumers see the asserted mark as a designation of source?

What aspects of a product’s design do consumers consider distinctive?

What kind and how much traditional and social media coverage does the product or asserted mark generate?


What kind and how much media coverage does the product or asserted mark generate?

Is the senior mark attached to a market leading product?

Does the senior mark dominate consumer discussion in its product category?

Is the senior mark widely recognized by the general consuming public?

Is the senior mark a part of popular culture?

Likelihood of Dilution

Is the infringing mark used in a way that would lessen the senior mark’s uniqueness?

Is the infringing mark being used in a commercial context?

Does the infringing mark draw an association in the minds of consumers?


Do consumers associate the infringing mark with the senior mark?

Do consumers draw negative associations with the infringing mark?

Is the infringing product perceived as being low quality or otherwise problematic?


Do consumers use the mark as shorthand for its product category?

Does the media refer to the mark generically?

How commonly is the mark used generically by competitors?

Intent to Purchase

What product attributes or benefits do consumers discuss most often?

What attributes do consumers cite when recommending the product?

How frequently are the product features in question mentioned when consumers talk about the product?

Lost Sales

Do consumers talk about switching products?

Do consumers recommend the infringing product to their friends or family?


Reason for Purchase

What features of the product were the key drivers of consumer buying behavior?

Are there competing products with similar features?

Which elements of the product do consumers consider novel?

What product elements are key drivers of consumer satisfaction?

Commercial Success

Does the invention have widespread awareness?

Do consumers readily associate the product with the invention?

Do consumers view this as a successful product?

Is it successful because of the invention?


Did consumers conceptualize the invention before it came to market?

Were consumers satisfied with existing solutions prior to the invention?

Do consumers cite the invention when comparing old products to new?


Market Definition

Which products do consumers view as competitors with one another?

Which products get mentioned together in social media posts?

Which retailers do consumers consider when purchasing a product?

How far are they willing to travel to make a purchase?

Do they consider online or other non-traditional sources?

How do consumers talk about competitive products and the market overall?


Do consumers identify a product’s pricing as predatory?

Has the predatory pricing successfully enticed consumers to switch products?

Do consumers cite pricing as the reason they purchase one product over another?

Other Antitrust Issues

Do consumers perceive a lack of competition in the market?

Do they think that prices are higher than they should be?

Do social media posts suggest other signs of antitrust behavior such as restricted supply, poor service, lack of innovation or variety in the market, or low product quality?


Analysis for a Brand or Event

How much social media discussion and traditional media coverage has a brand or event generated?

How broad is the reach of the discussion and coverage?

How many impressions has the discussion and coverage garnered?

How has the volume of discussion and coverage evolve over time?

How does the volume of discussion and coverage compare to other examples?

Class Certification

Why do consumers purchase the product in question?

What does the purchasing process look like?

What types of experiences do consumers have with the product?

How do consumers use the product?

How does the product’s pricing impact the buying behavior?

Is there homogeneity in the answers to these questions across the proposed class?

Deceptive Advertising

How much value do consumers place on deceptive or misleading advertising claims?

Are consumers being swayed by the deceptive or misleading claims?

Do consumers talk about the deceptive or misleading claims when recommending the product to others?

Do consumers cite the deceptive or misleading claims as a reason they purchased the product?

Do consumers recognize the claims as deceptive or misleading?

Complimentary Consultation

We would be pleased to discuss your litigation needs and provide some initial insights and direction at no charge.