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

Consumer evidence in an ordinary trade mark infringement case should be admitted only where the party tendering it shows that it is likely to be of real value and that its likely value justifies the cost. The court must act as a robust gatekeeper even where the evidence is technically admissible.

Evidence presented as consumers’ spontaneous reactions loses its value where leading questions induce speculation that did not arise during the consumers’ actual experience. A partisan selection which omits the full range of responses cannot be validated by transferring to the opposing party the burden of obtaining contrary evidence. The court’s assessment must examine the raw responses, the fairness of the resulting witness statements, representativeness, timing and all consequential costs.

Interflora sought to prove that internet users might believe that Marks & Spencer’s sponsored flower advertisement was commercially connected with Interflora. From a pool exceeding 100,000 people, it selected 13 proposed witnesses said to provide evidence of confusion in the real world.

Arnold J granted permission to call those witnesses in [2013] EWHC 273 (Ch). Marks & Spencer appealed, contending that the statements did not fairly reflect the witnesses’ raw answers, that a leading question had prompted speculation, and that the selected witnesses did not represent the range of responses.

The central issue was whether the judge had applied the proper gatekeeping standard when deciding that the proposed consumer evidence was sufficiently valuable to justify its admission and cost.

1. Appeal allowed unanimously. Lewison LJ held that the judge’s discretion had been exercised on a flawed basis. Sir Robin Jacob agreed and gave additional reasons, and Longmore LJ agreed with both judgments. Exercising the discretion afresh, the court refused permission to adduce the proposed evidence.
2. The applicable gatekeeping test, reaffirming the court’s earlier decision in [2012] EWCA Civ 1501, required the party tendering consumer evidence to satisfy the judge that it was likely to be of real value and that its likely value justified the cost. A finding that evidence had merely “some value”, or was not of little or no value, set the threshold too low.
3. The witness statements gave a materially more favourable impression of Interflora’s case than the witnesses’ raw answers. They removed hesitation, omitted answers recognising that the businesses were competitors or unconnected, and failed to distinguish spontaneous responses from speculation prompted by a leading question. The judge therefore mischaracterised much of the evidence as evidence of actual confusion in the real world.
4. The evidence was not representative of the range of responses. Interflora had selected favourable witnesses while disclosing 24 other interviewees who perceived no connection. Requiring Marks & Spencer to obtain statements from those interviewees or expose deficiencies through cross-examination improperly transferred the burden of validating the selection.
5. Paragraph 18.1 of Practice Direction 32 required a witness statement, where practicable, to use the witness’s own words. Compliance with the Whitford guideline against leading questions and induced speculation was especially important where evidence was tendered as a spontaneous consumer reaction. Failure to follow that guidance severely diminished, and might eliminate, the evidence’s value.
6. The application’s lateness also imposed an unfair burden. The judge’s cost assessment omitted the possible expense of locating, interviewing and calling the 24 contrary witnesses. The recast overriding objective of the Civil Procedure Rules, requiring cases to be dealt with justly and at proportionate cost, would reinforce the need to exclude technically admissible evidence lacking real value.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 319, unanimously allowed Marks & Spencer’s appeal and, exercising the discretion afresh, refused Interflora permission to adduce the proposed consumer evidence.
2. High Court, Chancery Division, Intellectual Property and Community Trade Mark Court: Arnold J granted Interflora permission to call the evidence in [2013] EWHC 273 (Ch).