Interflora Inc & Anor v Marks and Spencer Plc & Anor

Permission to adduce consumer evidence in a trade mark case depends on whether the evidence is likely to be of value and whether that value justifies the costs. Evidence of consumers who experienced confusion in the real world need not be statistically representative of the average consumer. Its weight depends on how closely the witnesses reflect the relevant consumer and how probative their experiences are. The court should distinguish such evidence from responses generated by an artificial survey or leading questionnaire. Transparency about how witnesses were identified and statements prepared is essential. In ordinary consumer trade mark cases, evidence from selected survey respondents will usually have little value unless it can be extrapolated or falls within a special circumstance. The likelihood-of-confusion assessment remains qualitative and is not answered by simply counting confused consumers.

Interflora sought permission to adduce statements from 13 consumers at the forthcoming trial of its claim that Marks & Spencer had infringed its trade marks by displaying advertisements when users searched Google for “interflora”. The proposed witnesses had been identified from Interflora customer databases and questionnaires, and had been interviewed about their actual experiences of seeing Marks & Spencer advertisements.

The application followed the Court of Appeal’s decision in the same litigation, which had excluded evidence from witnesses selected through an unreliable pilot survey: [2012] EWCA Civ 1501. The central questions were whether the proposed evidence was likely to assist the trial judge and whether its value justified the costs of adducing it.

1. Permission granted. Interflora was permitted to adduce the evidence of the 13 witnesses.
2. The approach stated by the Court of Appeal in the same litigation was applied. The court had to be satisfied both that the evidence was likely to be valuable and that its likely utility justified the costs. The terminology used to describe the exercise as a survey was immaterial.
3. Evidence of actual confusion in the real world does not require statistical representativeness. The court must instead assess whether the witnesses’ experiences are probative, including the extent to which they share the attributes of the relevant average consumer. Evidence of actual confusion may assist the court in deciding whether confusion is sufficiently likely to warrant intervention.
4. The likelihood-of-confusion inquiry is not binary and is not resolved by counting heads. A significant number of confused consumers may support a finding of sufficient likelihood, even though many consumers would not be confused.
5. The principal concern with survey or witness-collection evidence is whether the process distorted the evidence. The court must first examine transparently how the evidence was obtained and then assess whether the process presented a distorted picture. The relevant considerations include how faithfully any experiment reproduced the real-world situation and the extent to which questions influenced rather than elicited responses.
6. The evidence here concerned consumers’ recollections of actual encounters with the advertisements, rather than responses to an artificial experiment. The process had been disclosed with exceptional transparency. Although one question invited speculation, the evidence from other questions remained potentially useful and the ultimate weight of the evidence could be assessed after cross-examination at trial.
7. The sunk cost of obtaining the evidence, the modest additional trial costs, the proportion of the litigation costs involved and the substantial sums at stake meant that the evidential value justified the costs.

The application followed an earlier first-instance decision refusing permission for evidence from witnesses identified through the second pilot survey: [2012] EWHC 1722 (Ch). The Court of Appeal allowed Marks & Spencer’s appeal and dismissed Interflora’s cross-appeal: [2012] EWCA Civ 1501. The Supreme Court refused permission to appeal.