(New Zealand) The court examined the question of whether market resarch was admissible as expert evidence as to damages.
Held: ‘So far as I can see, public opinion or survey evidence is not now in practice treated as hearsay in trade mark or patent cases in the United Kingdom notwithstanding that the party adducing such evidence relies not only upon the affidavits of persons responding to a questionnaire but also upon answers not sworn to but available for inspection by the other side in terms of the direction given in A. Baily and Co. v. Clark, Son and Morland. The latter class of answers, unsanctified by judicial oath, are resorted to by the other side in order to verify the assertion that the sworn answers in fact represent a proportion of a total number tending to the same evidentiary conclusion, and subject to that right of inspection the total number of answers is accepted, in the absence of objection as to their factual existence in due form, as comprising a legitimate assembly of class opinion or impression in respect of the trade name or mark under consideration. In such a case, as in the case of conventional evidence by retailers as to the oral terms of buying orders or inquiries by customers, the Courts plainly accept evidence which is technically overshadowed by a general hearsay objection. The unsworn persons responding to a questionnaire and the anonymous customers who order or inquire about goods are all people making statements out of Court to a witness called in the proceedings, and although the basis of admissibility does not appear to be overtly founded upon anything except established practice and procedure under the trade mark and patent legislation, I can for myself see no objection to the classification of such evidence either as proving a public state of mind on a specific question, which is an acknowledged exception to the hearsay rule, or as proving an external fact, namely, that a designated opinion is held by the public or a class of the public, this not being a matter of hearsay at all.’
As to the weight to be attached to survey evidence: ‘There are obvious difficulties in the acceptance of testimony which purports to convey to the appropriate legal tribunal a number of individual assertions or opinions uttered in relation to the subject matter of the inquiry by persons not called as witnesses and, therefore, not subject to cross-examination, but the considerations which I have mentioned lead me to the conclusion that the result of a market research survey is admissible in this class of case to prove a fact in issue, whether it be reputation or likelihood of confusion or deception, even though the persons responding to the form of questions are not called as witnesses. The weight of such evidence, which was the basis of Mr. Gault’s objection in this case as opposed to technical admissibility, will depend upon the circumstances. There must be a formulation of questions cast in such a way as to preclude a weighted or conditioned response, there must be clear proof that the answers were faithfully and accurately recorded, and there must be evidence that the answers were drawn from a true cross-section of that class of the public or trade whose impression or opinion is relevant to the matter in issue. A properly drawn market research questionnaire, carefully framed so as to elicit opinions or beliefs held by persons adequately informed, can only reveal in my opinion the existence or otherwise in a defined proportion of the persons interviewed of the relevant opinion or belief, and I do not think it can be right in cases involving trade mark infringement or passing off where evidence of reputation is relevant, and especially in a passing off action where affidavit evidence is not receivable to compel a party to produce in the Courtroom an interminable parade of witnesses to depose individually as to their knowledge and understanding of the trade association involved in a particular trade mark or design, so long as there are followed the cautionary procedures recommended in the article in the New York University Law Review above cited. The evidence obtained by research surrey is in my view legitimate proof of the fact the opinions obtained had in fact existed, whether rightly held or not and on that view of the matter it is my opinion that such evidence is not hearsay at all and that, even if it did fall within the technical concept of hearsay or representing a collation of individual statements made out of Court then the evidence would still be admissible by way of exception to the hearsay rule because it exhibits the existence of a state of mind shared in common by a designated class of persons. In the present case the method and procedure of taking this research survey has already been described and I am satisfied that those methods and procedure were not only adequate but exemplary, and that the results thus obtained are admissible in evidence as proving the reputation of the name in question in relation to the manufacturer and the designer and the place of origin as held by persons properly informed on the general subject matter of the relevant enquiry.’
Mahon J
[1976] RPC 589
England and Wales
Citing:
Cited – A Baily and Co v Clark Son and Morland HL 1938
The House considered how market research surveys might be introduced in evidence. Lord Russell recommended filing affidavits from a limited number of respondents to the survey and filing a further affidavit proving the number of other persons who . .
Cited by:
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.238581
