Enterprise Holdings Inc v Europcar Group UK Ltd & Anor

Permission to rely on consumer survey evidence in a trade mark case is governed by the same gatekeeping principles whether the survey concerns confusion or acquired distinctiveness. The court must assess whether the evidence is likely to be of real value at trial and whether that likely value justifies its cost. A survey should be excluded if it is unlikely to be held valid at trial. In assessing acquired distinctiveness, the court may consider a survey where it is likely to face difficulty deciding the issue from its own knowledge and experience, particularly where the mark has commonly been used with another mark. The court should assess the reliability of the proposed methodology without imposing unrealistic perfection.

Enterprise alleged that Europcar had infringed its United Kingdom and Community trade marks and committed passing off. Enterprise sought permission to rely on an existing survey conducted for proceedings before OHIM, a pilot survey conducted for the present proceedings, a further full survey, and expert evidence. The surveys concerned whether Enterprise’s green logo had acquired distinctive character through use, not whether Europcar’s sign was likely to confuse consumers with Enterprise’s marks.

The application required the court to determine whether the surveys were likely to be valid and of real value at trial, and whether their likely value justified their cost.

1. Applicable principles. The principles stated in Interflora Inc v Marks and Spencer plc [2013] FSR 21 applied equally to surveys concerning acquired distinctiveness and surveys concerning confusion. The court had to act as a robust gatekeeper and permit survey evidence only if it was likely to be of real value at trial and the likely value justified the cost.
2. Validity. The court assessed the criticisms of the samples, demographic data, question sequence, possible leading or speculative questions, coding, absence of a control survey and the dates of the surveys. Those criticisms were not likely to deprive the surveys of validity. A survey must strike a workable balance between giving respondents sufficient context and avoiding leading questions or artificial speculation. The court need not require every recommended survey feature where the evidence remains capable of providing useful assistance.
3. Real value. There was likely to be difficulty in assessing whether the green logo had acquired distinctive character. Some use had been as part of, or with, another trade mark. A trial judge might reasonably wish to guard against an idiosyncratic or insufficiently informed assessment based only on personal experience. The surveys were therefore likely to be of real value.
4. Cost and disposition. The estimated costs of the surveys did not outweigh their likely benefit, particularly against the costs already incurred in litigating admissibility. Enterprise was permitted to rely on survey evidence in accordance with its application.