Geoffrey Hobbs QC and Emma Himsworth QC (instructed by Osborne Clarke ) for Marks and Spencer plc; Michael Silverleaf QC and Simon Malynicz (instructed by Pinsent Masons LLP ) for Interflora Inc.
On an appeal in ongoing proceedings about alleged trade mark infringement the particular question raised was whether the trade mark proprietor should be allowed to call the evidence of witnesses identified by means of a witness gathering exercise where the proprietor did not intend to rely on the survey or questionnaire by means of which the witnesses were identified.
Appeal allowed. While not accepting the proposition that evidence from respondents to a questionnaire could never be called in the absence of a statistically valid and reliable survey, a judge asked for permission to adduce such evidence should evaluate it carefully. Even if the evidence was technically admissible the judge should not let it in unless (a) satisfied that it would be valuable and (b) the likely utility of the evidence justified the costs involved. It followed that the approach taken in UK Channel Management Ltd v E! Entertainment Television Inc [2007] EWHC 2339 (Ch) and A & E Television Networks LLC v Discovery Communications Europe Ltd [2011] FSR 31 should no longer be followed (para 145). In the present case it had not been demonstrated that the evidence to be called would be of real value (para 144).
Decision of Arnold J [2012] EWHC 1722 (Ch) reversed.