A brand name used in association with product get-up is likely to be a feature upon which customers rely, especially if the get-up combines features in common use in the trade with a distinctive brand name. Whtford J set out guidelines for the admission of survey evidence in passing off cases, noting that ‘great importance inevitably attaches to the way in which the questions are cast.’
As to the plaintiff’s survey, it was: ‘very difficult in connection with to think of questions which, even if they are free from the objection of being leading, are not in fact going to direct the person answering the question into a field of speculation upon which that person would never have embarked had the question not been put.’
The guidelines were:
the interviewees must be selected so as to represent a relevant cross-section of the public;
the size must be statistically significant;
it must be conducted fairly;
all the surveys carried out must be disclosed including the number carried out, how they were conducted, and the totality of the persons involved;
the totality of the answers given must be disclosed and made available to the defendant;
the questions must not be leading nor should they lead the person answering into a field of speculation he or she would never have embarked upon had the question not been put;
the exact answers and not some abbreviated form must be recorded;
coding must be accurately carried out;
the instructions to the interviewers as to how to carry out the survey must be disclosed; and
where the answers are coded for computer input, the coding instructions must be disclosed.
Whitford J
[1984] RPC 293
England and Wales
Cited by:
Cited – A and E Television Networks Llc and Another v Discovery Communications Europe Ltd ChD 1-Feb-2013
The claimants had operated the ‘History’ and associated variant TV channels and trade marks. The claimed that the defendant’s ‘Discovery History’ channels were in breach. The defendants challenged the validity of the trade marks. The court now . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.470731
