Glaxo Wellcome UK Ltd (t/a Allen & Hanburys) & Anor v Sandoz Ltd & Ors

Survey evidence in passing off proceedings should be admitted where it is likely to have real value and that value justifies the cost. The court must evaluate relevance, reliability and proportionality, but should not convert the permission application into a mini-trial. A survey directed to distinctiveness may be relevant even though it does not test confusion or deception. Where the pleaded case concerns a colour as such, testing a colour sample in isolation may be an appropriate method. Imperfections in documentation, sampling or questioning do not necessarily justify exclusion if their effect can fairly be assessed at trial.

The claimants brought passing off proceedings concerning the purple colour and get-up of Seretide inhalers. They sought permission to rely on completed surveys of general practitioners and pharmacists addressing whether the colour was distinctive of trade origin. The defendants argued that the surveys were artificial, inadequately documented, methodologically flawed and disproportionate in cost. The application required the court to decide whether the evidence was sufficiently relevant and reliable to justify admission before trial.

1. Permission granted. The claimants were permitted to rely on the survey evidence in the passing off proceedings.
2. The governing approach was contained in the Whitford guidelines, summarised in [2012] EWCA Civ 1501. The court must consider the selection of interviewees, sample size, disclosure of the survey process and results, the form of questions, accuracy of recorded answers, disclosure of all answers and interviewer instructions.
3. Under [2012] EWCA Civ 1501 and [2013] EWCA Civ 319, the court should admit survey evidence only where it is likely to be of real value and that value justifies the cost. This requires a cost-benefit assessment. The application is a case-management exercise and must not become a mini-trial.
4. The surveys were directed to distinctiveness rather than deception or confusion. That was not a reason for exclusion because distinctiveness was disputed and was a material issue in the passing off claim. Since the claim included an allegation that the colour purple was distinctive in itself, testing the colour by means of a sample square was a logically appropriate approach.
5. The documentation and methodology disclosed potential weaknesses, including incomplete records of interviewer training, sampling concerns and potentially speculative or leading questions. Those matters did not establish at the interim stage that the evidence had no real value. Their significance could be assessed at trial through cross-examination and evaluation of the evidence as a whole.
6. The likely additional cost was substantial, but proportionate in the context of a high-value commercial dispute. Duplicative expert evidence should be avoided, and the parties were encouraged to narrow the issues and consider concurrent evidence. The application was therefore allowed.

First-instance decision on an application for permission to adduce survey evidence. No appellate history was stated in the judgment.