The ongoing trade mark dispute between Interflora and Marks & Spencer has been the focus of several of our earlier alerts as it has already resulted in a handful of judgments. The main dispute concerns the use of competitors' trade marks as sponsored internet key/search terms, but recent hearings have concerned what consumer evidence can be used to support infringement claims.

Earlier this month (April 2103), the Court of Appeal handed down the second of such judgments which relates to whether consumer evidence of a "likelihood of confusion" based on answers to questionnaires should be admitted in trade mark disputes. In its earlier judgment, the court had indicated that such evidence (i.e. a witness gathering exercise) should not be admitted, unless it was shown that it was likely to be of "real value" and that value justified the parties' costs involved in obtaining and considering it.

However, the Court of Appeal's general disapproval of such witness gathering exercises appeared to stem, in a substantial part, from the fact that such evidence is prompted by "artificial stimuli". Spontaneous evidence from consumers who were in fact confused has historically been admitted without issue. Accordingly, Interflora embarked on an exercise designed to uncover evidence of consumers who had in the past been confused by the actual internet use of its mark in the real world.

In the High Court, Arnold J decided the witness evidence Interflora had obtained as a result of this new exercise should be admitted; it related to "actual confusion", it would be of "some value" and the costs involved were mostly already "sunk". Marks & Spencer appealed this decision and was successful.

Lewison LJ, who gave the leading judgment in the Court of Appeal, firmly disagreed with the approach taken by the High Court judge: "With the benefit of hindsight, perhaps I did not make my message clear enough in Interflora 1. Let me say it again, but more loudly. A judge should not let in evidence of this kind unless the party seeking to call that evidence satisfies him (a) that it is likely to be of REAL value; and (b) that the likely value of the evidence justifies the cost".

The Court of Appeal also heavily criticised the following question within the questionnaire Interflora sent to selected customers on its mailing list, which was included to unearth evidence that consumers had been confused: "From your memory of these [internet] search results, what, if anything, do you think the results tell you about any relationship between Interflora and M & S?"

Lewison LJ concluded it was not possible to describe the answers to this question "as real world responses to the M & S advertisement. On the contrary, since [this] question was only to be asked if the interviewee failed to mention a connection arising out of his or her experience in the real world [in answer to earlier questions], it was plainly an attempt to elicit an answer by means of an artificial stimulus".

The Right Honourable Sir Robin Jacob agreed with the leading judgment, but was a little more reserved. He thought the key consideration was the negative impact this question had on the value of the evidence obtained. The value of the witnesses who had been exposed to this question was "nil", which left only five consumer witnesses who could not be assumed to be representative of the average consumer.

So, is that the end of surveys and witness gathering exercises in trade mark disputes in the UK? Not quite. We will let Sir Robin Jacob have the last word on this subject: "This decision does not mean that the days of survey evidence are over. It is possible to conduct fair surveys and they may indeed lead to witnesses of value. And that may turn a case...".