Survey evidence in a trade mark dispute

Benefits and disadvantages of survey evidence

Trade mark disputes involve the allegation that a company has used a similar or identical trade mark, which has simultaneously caused confusion to the consumer about where the branded products or services have originated from. Survey evidence may prove useful to determine this confusion or understanding and can add weight to a case. The purpose of survey evidence is to ascertain whether a reasonable person would have been misled as to where the goods or services originated from.

With well prepared methodologies, businesses can use the evidence collated from the survey to persuade judges to settle trade mark disputes in their favour.

Courts have to be persuaded heavily to allow a survey of evidence to commence, as they disapprove of procedures that will add time and cost to proceedings. There must be proof of a need for such information to be gathered and judges may disagree with such a need for the survey if they believe that they would be able to interpret by themselves whether any confusion would have been conferred onto the consumer. This is why survey evidence is rarely used in proceedings.

The methodology for the survey needs to be robustly prepared before the proposal is made to the court, in order to ensure that no leading or biased questions are asked which could influence the judge to deem the evidence inadmissible or unusable. The survey should be conducted entirely independently of the business seeking the information.

The selection of people in the survey need to represent the average, reasonably well informed and observant consumer relevant to the dispute otherwise an opponent could raise an objection to the evidence.

A disadvantage of survey evidence is that by proceeding with a survey you are creating evidence which may be divulged to the court and the risk is this may not work in your favour if the results show in the proceedings exactly the opposite to which you were trying to prove.

A survey incurs much expense, and the process is not always quick. Additionally, the majority of evidence gathered from a survey will not be determinative and will only act as a persuasive tool on a case-by-case basis.

Importance of survey evidence

 In the UK, trade mark law gives protection against competitors from using their trade mark to market or sell identical or similar goods or a service covered by the trade mark, but also extends to rivals who uses a similar or identical trade mark when selling goods or services that are not similar.

UK law states that protection applies solely when it is established that the trade mark holds a reputation in the UK and that others’ use of their sign, without due cause, has taken unfair advantage of, or is detrimental to, the distinctive character or the reputation of the trade mark.

The survey can help in determining whether or not confusion has been suffered by the consumer and whether the competitor took unfair advantage of the trade mark.

This article was written by Saowanee Kristin, a post-graduate student on work experience at Lawdit

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