Further ruling on witness collection exercises in Interflora: High Court allows evidence of actual confusion from witnesses obtained using a prize draw questionnaire

LawFuel – Law Firm Newswire – On 21 February 2013, Arnold J handed down a judgment granting permission to adduce evidence from witnesses obtained in the course of a witness gathering exercise by which existing customers who had previously experienced real-world confusion were identified using a “prize draw questionnaire”.
This application took place in the context of keywords proceedings between Interflora and Marks & Spencer (“M&S”) where Interflora was previously denied permission by the Court of Appeal in November last year to call evidence from selected witnesses (favourable to its case) identified as a result of a survey which it accepted was not statistically reliable.
The decision of the Court of Appeal was summarised in a previous bulletin. In particular, the Court of Appeal rejected M&S’s submission that consumer evidence would never be admissible in a trade mark infringement action in the absence of a statistically reliable survey. It gave several examples of where such evidence may be appropriate, including “spontaneous reactions of members of the relevant public to the allegedly infringing sign or advertisement”.

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