The London Taxi Corporation Ltd (t/a the London Taxi Company) v Frazer-Nash Research Ltd & Anor

Permission to adduce survey evidence in a passing-off claim should be granted only where the evidence is likely to have real value and that value justifies the cost. The court must assess the survey’s reliability, compliance with the Whitford Guidelines, relevance to the real-world circumstances, targeting of the relevant public and likely effect on the trial. Evidence about a perceived connection between businesses does not, without more, establish deception or deception caused by similarity of appearance. The trial judge must retain independent judgment on whether the defendant’s conduct is calculated to deceive.

The claimant, a manufacturer of purpose-built London taxis, sought permission to rely on a pilot survey, conduct a full survey and adduce evidence from survey respondents in support of its passing-off claim concerning the appearance of a new Metrocab. The defendants challenged the survey’s target population, questions, show materials, reliability and cost. The central issue was whether the proposed evidence was likely to have real value in determining deception and whether its value justified the resulting costs and impact on the trial.

1. Independent determination of deception. Whether conduct is calculated to deceive, and therefore amounts to a misrepresentation, is ultimately for the trial judge. Survey evidence may assist in an appropriate case, but it cannot require the judge to surrender independent judgment.
2. Real value and cost benefit. Applying Interflora Inc v Marks & Spencer plc [2012] EWCA Civ 1501, Interflora Inc v Marks & Spencer plc (No 2) [2013] EWCA Civ 319 and Zee Entertainment Enterprises Ltd v Zeebox Ltd [2014] EWCA Civ 82, permission should be granted only if the evidence is likely to be of real value and its likely value justifies its cost. The assessment is directed primarily to evidential value and reliability, not to predicting the eventual result.
3. The court should consider compliance with the Whitford Guidelines, whether the survey reproduces the real-world circumstances in which the sign is encountered, whether it is properly directed to the relevant public, and whether the evidence concerns deception rather than merely a subsidiary propensity to make a connection.
4. The survey’s questions about a connection between the companies making the two vehicles were leading and invited respondents into speculation. Answers indicating a perceived connection could arise from extraneous beliefs and did not establish deception, still less deception caused by similarity of appearance.
5. The photographs failed fairly to reproduce the real-world comparison. They obscured material differences, including branding and grille details, and presented the vehicles in artificial circumstances. The pilot survey also revealed substantial disagreement about categorisation and would generate disproportionate expert and witness evidence.
6. The application was therefore dismissed. The court was not persuaded that the pilot results, a further survey or respondent evidence was likely to have real value sufficient to justify the cost and disruption.