Since the Interflora v Marks & Spencer trade mark case last year, certain trade mark advisers have taken the view that the English Courts will no longer allow survey evidence to be adduced in trade mark infringement cases, except in very exceptional circumstances.
However, a case heard in July of this year proves that this is not quite correct.
The case involved Enterprise Holdings and Europecar, both of which are involved in the vehicle rental business. Enterprise consider that Europecar are infringing their logo trade marks.
The survey evidence (and expert evidence in relation to the surveys) that Enterprise wanted to submit did not relate to the likelihood of confusion between Enterprise's trade marks and Europecar's trade marks. Instead, it related to the alleged distinctiveness and reputation of Enterprise's trade marks, in particular its logo marks for the stylised letter "e". Enterprise allege that their trade marks are entitled to a broader degree of protection, according to established trade mark law, due to the fact that their logo marks have enhanced distinctive character and an EU wide reputation, as a result of the use that has been made of them both in the UK and elsewhere in the EU. They wanted to obtain and file survey evidence to assist them in proving that a significant proportion of the relevant public recognised the logo marks as their 'badges of trade origin'.
The Court decided to give permission for Enterprise to conduct and rely on the survey evidence in question, even though it was estimated that their costs for carrying out the survey exercise would be £117,000. It was felt that the survey evidence was likely to be of real value at the trial, as it would assist the trial judge to determine whether the logo marks had acquired distinctive character through use.
So, survey exercises are not dead yet. Long live the survey!