Witness evidence excluded in trade mark dispute

Posted: 22nd November 2012

In the context of a trademark dispute, the Court of Appeal has ruled that selective evidence obtained by one of the parties through a witness gathering exercise is neither useful nor reliable and should be treated as inadmissible. The questionnaire used in gathering the evidence from shoppers did not produce statistically reliable results and it would be wrong to allow the party who commissioned the survey to present evidence only from those witnesses who had supported its case.

Interflora Inc. had instituted trademark infringement proceedings against Marks & Spencer Plc, relating to the alleged use of the former’s marks to improve the internet profile of the latter’s floral delivery service. Interflora had carried out a public ‘pilot survey’ of shoppers and internet users to test the extent, if any, of public confusion caused by the alleged unauthorised use of its marks.Bouquet

Interflora accepted that the survey had not produced statistically reliable results but proposed to call as witnesses in the trademark dispute those participants whose answers to the questionnaire were most favourable to its case. Interflora was permitted to take that course by the High Court.

In allowing Marks & Spencer’s appeal, the Court of Appeal noted that public survey evidence has been presented in court for many years but judges had grown more sceptical about the value of such surveys unless conducted rigorously. Lord Justice Lewison observed: ‘A cynic might think that the phrase ‘witness collection programme’ is simply a euphemism for adducing evidence from a skewed selection of witnesses identified by means of a statistically invalid and unreliable survey’.

The judge, sitting with Lords Justice Hughes and Etherton, said that there are circumstances in which such evidence may be useful in trademark cases where, for example, the court needs to be informed of shopping habits or market conditions. However, in the present case, it would be an undue and unfair burden on Marks & Spencer were Interflora permitted to present witness statements from selected respondents to an unreliable survey which did not reflect the full range of answers given. The evidence would only serve to distract the court’s focus from the issues in the case and would be of no real value in ascertaining whether the hypothetical reasonably well-informed and observant internet user would be confused by the alleged infringements.