Michael Silverleaf QC and Simon Malynicz (instructed by Pinsent Masons LLP ) for the claimants; Geoffrey Hobbs QC and Emma Himsworth QC (instructed by Osborne Clarke ) for the first defendant.
The claimants, Interflora Inc and Interflora British Unit, applied for permission to adduce in evidence the witness statements of 13 witnesses at the trial of an action for alleged infringement by the defendants, Marks and Spencer plc and Flowers Direct Online Ltd, of United Kingdom and Community trade marks for the word “INTERFLORA”, scheduled for mid-April 2013: see also [2012] EWHC 1722 (Ch) and [2012] EWCA Civ 1501. The object of the present application was to put evidence before the court of confusion by consumers when conducting Internet searches for “interflora” and being presented with advertisements for the first defendant.
Arnold J said that what mattered was not the terminology, but whether he could be satisfied that (a) the evidence of the 13 witnesses would be of value, and (b) the value of the evidence justified the costs involved (para 34). He considered overall that the evidence was likely to be of some value in assisting the court in determining whether Internet users could ascertain whether the goods and services referred to in the advertisements originated from the claimants, or an undertaking economically connected to them, or, on the contrary, emanated from a third party. The weight given to it would be a matter for evaluation after cross-examination of the witnesses and once it had been put in the context of all the other evidence available at trial (para 59). Arnold J went on to hold that the value of the evidence justified the costs of obtaining the evidence bearing in mind the large sums at stake for both sides (para 65). Accordingly, he gave permission to the claimants to adduce the evidence of the 13 witnesses (para 66).