Marks and Spencer Plc v Interflora Inc and Another: CA 20 Nov 2012

The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have allowed the calling of evidence of the kind that Interflora wishes to call and have considered it, either in conjunction with or in the absence of a statistically valid and reliable survey. But it is generally of little or no value. Sometimes it does no more than confirm the conclusion that the judge would have reached without the evidence. In passing off cases it sometimes has greater effect, but as I have said more than once, passing off raises a different legal question. Unless the court can be confident that the evidence of the selected witnesses can stand proxy for the persons or construct through whose perception the legal question is to be answered it simply represents the evidence of those individuals. In a case in which the witnesses are called in order to amplify the results of a statistically reliable survey their evidence may be probative. But unless the court can extrapolate from their evidence, it is not probative.’
Hughes, Etherton, Lewison LJJ
[2012] EWCA Civ 1501, [2013] BUS LR D46
Bailii
England and Wales
Citing:
CitedA and E Television Networks Llc and Another v Discovery Communications Europe Ltd ChD 20-Apr-2011
Case management decision in trade mark infringement action, on the extent to which the court should give permission for a survey to be conducted, and for evidence resulting from previous surveys to be admitted.
Held: Mann J gave the claimant . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 29-Apr-2010
Response to request for clarification of reference to the ECJ. . .
ECJ OpinionInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 24-Mar-2011
ECJ (Opinion) Trade marks – Keyword advertising corresponding to the trade mark of a competitor of the advertiser – Trade marks with a reputation – Blurring – Tarnishment – Free-riding – Directive 89/104 – . .
ECJInterflora And Others v Marks and Spencer plc, Flowers Direct Online Limited ECJ 22-Sep-2011
ECJ Trade marks – Keyword advertising on the internet – Selection by the advertiser of a keyword corresponding to a competitor’s trade mark with a reputation – Directive 89/104/EEC – Article 5(1)(a) and (2) – . .
See AlsoInterflora Inc and Another v Marks and Spencer Plc and Another ChD 20-Jun-2012
Application for permission to to adduce witness evidence at trial from witnesses gathered from two pilot surveys. . .

Cited by:
CitedBocacina Ltd v Boca Cafes Ltd IPEC 14-Oct-2013
The claimant alleged passing off by the defendant’s use of the name ‘Boca Bistro Cafe’, and subsequently ‘Bica Bistro Cafe’
Held: Where the defendant had changed its trading style during the proceedings it was possible, if the claimant . .
CitedInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-Feb-2013
‘The Claimants (‘Interflora’) seek the permission of the Court to adduce in evidence the witness statements of 13 witnesses at the trial of this action scheduled for mid April 2013. Interflora do not accept that they need the Court’s permission, but . .
CitedInterflora Inc v Marks and Spencer Plc CA 22-Mar-2013
Interflora had been refused permision to adduce survey evidence, but now appealed against refusal of permission to adduce evidence of confusion by witness statements.
Held: Appeal allowed. Reasons to follow. . .
CitedInterflora Inc and Another v Marks and Spencer Plc CA 5-Apr-2013
The court gave its reasons for allowing the claimant to bring additional witness evidence as to confusion as opposed to survey evidence. . .
CitedInterflora Inc and Another v Marks and Spencer Plc and Another ChD 15-Apr-2013
The defendant objected to the introduction of certain evidence by the claimant under a Civil Evidence Act notice. . .
CitedInterflora Inc and Another v Marks and Spencer Plc and Another ChD 21-May-2013
Mark use in search engine was infringing use
The claimant mark owner alleged that the defendant, in paying a search engine to use the claimants mark as a search keyword was infringing its rights. The defendant argued that the use of the same sign in different contexts could amount to a . .
CitedInterflora Inc and Another v Marks and Spencer Plc and Another ChD 12-Jun-2013
The court considered the form of the injunction requested to give effect to the earlier full judgment in the case brought, requiring the defendant to discontinue any use of the terms complained of as infringing the claimant’s registered marks as . .
CitedApollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .

These lists may be incomplete.
Updated: 28 April 2021; Ref: scu.470118