Interflora Inc & Anor v Marks & Spencer Plc (Rev 1)

The Court of Appeal allowed the appeal against Arnold J's decision permitting Interflora to call evidence from selected consumers. The court applied and reiterated the principle from the earlier Interflora judgment that judges must act as robust gatekeepers when deciding whether to admit consumer evidence in trade mark actions. Such evidence should be admitted only if the party seeking to call it satisfies the court that (a) it is likely to be of real value to the issues at trial and (b) the likely utility of the evidence justifies the costs. The court found the proposed evidence tainted by a leading question (question 28), by witness statements which did not fairly reflect the raw interview answers, and by a partisan, unrepresentative selection process. The judge below applied too lax a test, placed an unfair burden on the defendant to disprove the selection and failed properly to assess proportionality and costs.

This appeal concerned whether evidence from individual consumers identified from a large pool of contacts should have been admitted to demonstrate "real world" confusion in a trade mark infringement dispute. The claimants (Interflora) sought to rely on evidence from 13 witnesses selected from over 100,000 potential contacts to support their contention that a sponsored link shown after a Google search for "Interflora" could lead reasonably well-informed and observant internet users to believe the service offered by Marks & Spencer originated from Interflora.

Procedural posture: The decision under appeal was that of Arnold J in the Intellectual Property, Community Trade Mark Court ([2013] EWHC 273 (Ch)). This Court of Appeal had previously considered related issues in Interflora 1 ([2012] EWCA Civ 1501 [2013] ETMR 11) and gave permission to appeal the specific question whether the consumer witness evidence should have been admitted.

Issues framed:

• whether the proposed consumer evidence constituted admissible and reliable evidence of real-world confusion;
• whether the evidence satisfied the requirement that it be of real value and that its utility justify its cost;
• whether the method of selecting witnesses and the form of questioning (notably question 28) rendered the evidence inadmissible or valueless;
• the proper gatekeeping role of the trial judge in excluding partisan or unrepresentative consumer evidence.

Court's reasoning: The Court of Appeal scrutinised the raw interview answers and concluded they differed materially from the lawyer-drafted witness statements. Many answers were prompted by question 28, which invited speculation and was therefore leading; answers to that question could not be treated as spontaneous "real world" reactions. The selection of 13 witnesses from a much larger pool, without presenting the full range of responses, produced a partisan and unrepresentative sample and shifted the burden onto Marks & Spencer to disprove the selection's validity. The judge below failed to apply the required robust test — namely that the calling party must show the evidence is likely to be of real value and that its value justifies the cost. The admission thus amounted to a flawed exercise of discretion. The Court would have refused the application and therefore allowed the appeal.

Wider context: The court reiterated adherence to the Whitford guidelines for consumer questioning and stressed proportionality in line with the Civil Procedure Rules (including PD 32 para 18.1 and the re-cast overriding objective emphasizing proportionate cost). The decision underlines that properly conducted surveys or consumer evidence remain admissible but that evidential quality and representativeness are essential.

Appeal allowed. The Court of Appeal held that Arnold J had exercised his discretion on a flawed basis by admitting the selected consumer evidence. The evidence was undermined by a leading question (question 28), by witness statements that did not accurately reflect the raw interview answers, and by a partisan, unrepresentative selection. The court emphasised that consumer evidence should only be admitted if it is likely to be of real value and if its likely utility justifies the cost; had the court exercised the discretion afresh it would have refused permission to adduce the evidence.

Appeal to the Court of Appeal from Arnold J sitting in the High Court, Chancery Division, Intellectual Property, Community Trade Mark Court ([2013] EWHC 273 (Ch)). The Court of Appeal also considered its earlier related judgment in Interflora 1 ([2012] EWCA Civ 1501 [2013] ETMR 11) when addressing the gatekeeping principles for consumer evidence.