Trademark Infringement- M&S vs. Interflora

Yesterday the IPKat wrote about an interim judgment handed down by the Court of Appeal in the dispute between Interflora and M&S.  The case revolves around the question of whether competitors should be able to bid on a registered trademark in Google Keywords, and you can read more about it in our earlier post, which covers Internet Marketing and Keywords in Search Engine Advertising.

This particular decision didn’t focus on keywords, trademarks or advertising as such, but answered a question never before posed to British courts about how evidence should be gathered and used in cases of trademark infringement.  The court had to decide whether evidence from witnesses who were selected via a survey should be admitted, when the survey itself is not to be relied on.  

Far Reaching Implications

The decision ought to interest anyone involved in a case of trademark infringement. Often, a critical issue when proving trademark infringement is demonstrating evidence of public confusion. However, there are inevitably hurdles to gathering this kind of evidence: is any particular witness indicative of the sentiment of the general public? How many witnesses should be called to give an accurate view of public opinion? How do you go about finding those witnesses? This last question in particular was at the heart of the decision yesterday.

The Court’s Decision

In short, though the judgment was not as dismissive of survey evidence as courts have been in the past, it makes clear that if you want to use surveys to identify witnesses, you should be ready to justify your methodologies.  The IPKat wisely observes that this could be an added incentive for people who don’t like surveys, perhaps spurring them on to attack methodologies, and devalue surveys in legal proceedings.

The judgment also serves to illustrate how careful you need to be when gathering evidence of trademark infringement.  Integrity and reliability are paramount, and you might need to be particularly careful if your aim is to describe the ability of a hypothetical ‘reasonably well-informed and observant internet user’ to glean whether two businesses are connected. 

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