In Interflora Inc v Marks & Spencer plc  EWCA Civ 319, the Court of Appeal of England and Wales has overturned the High Court’s decision to allow survey evidence to be admitted in a trade mark infringement dispute on the grounds that the evidence would not be of real value.
In the main action, Interflora alleges that Marks & Spencer infringed their UK and Community trade marks through the purchase of keywords that generated advertisements that did not enable (or only with difficultly) reasonably well-informed and reasonably observant internet users to ascertain whether the goods advertised were from Interflora or Marks & Spencer. Interflora decided to look for evidence of confusion amongst its customers by emailing a survey to a subset of them. This survey resulted in the production of the 13 witness statements that Interflora was granted permission to rely on at trial before Mr Justice Arnold on 21 February 2013.
In granting permission to rely on the witness statements, Arnold J sought to apply the new test set out by the Court of Appeal in the same dispute. This requires the party seeking to rely on the evidence to show that it will likely be of value at trial and that the costs involved are justifiable. Arnold J concluded that the evidence was of "some value" and that the costs were justified. Marks & Spencer appealed this decision to the Court of Appeal.
The Court of Appeal included Lord Justice Lewison, the judge who had given the judgment in which the new test for admissibility of such evidence was set out. Lewison LJ quoted from his previous judgment, in which he had said that the purpose of controlling evidence at the interim stage was
"… not merely to avoid irrelevant (i.e., inadmissible) evidence; it is also to avoid evidence which is unlikely to be of real value". Lewison LJ had also said in that judgment that "… even if the evidence is technically admissible, the judge should not let it in unless (a) satisfied that it would be valuable and (b) that the likely utility of the evidence justifies the costs involved"; and that "In deciding whether to give permission, the court must evaluate the results of whatever material is placed before it. Only if the court is satisfied that the evidence is likely to be of real value should permission be given".
Lewison LJ had also said that, "if there is evidence of consumers who have been confused in the real world, there can be no objection to calling it".
Lewison LJ then considered the nature of the 13 witness statements Interflora wished to rely on. He examined not only the statements, but also the raw data behind those statements, i.e., the questions that the solicitors had asked the 13 people identified and their responses. He found that "the witness statements paint a rather different picture to that given by the raw answers to the questions. The way the witness statements paint the picture is more favourable to [Interflora’s] case". In Lewison LJ’s view, Arnold J had, when granting permission to adduce the 13 statements, been misled by the impression created by the statements when compared to the raw data on which they were based.
Lewison LJ further considered that Arnold J had applied the wrong test. Lewison LJ reiterated his finding in the previous Court of Appeal judgment that the test was whether or not the evidence was likely to be of real value, as opposed to some value, the standard applied by Arnold J. In summary, Lewison LJ concluded that "… the judge conducted a flawed analysis of the nature of the application, the quality of the raw data that supported the witness statement, and ultimately applied too lax a test". Given that Arnold J had exercised his discretion on a flawed basis, Lewison LJ said that the Court of Appeal should exercise the discretion afresh. He therefore allowed the appeal.
In his judgment, Lewison LJ has emphasised the high bar that he considers appropriate to place on the admission of survey evidence and similar in trade mark infringement disputes. The requirement that the evidence is of real value does not sound the death knell for survey evidence per se, but it does suggest that its admission in any dispute is likely to be an uphill struggle.