Enterprise v Europcar: survey evidence; distinctiveness

Case law has established that survey evidence may be relevant when the court is asked to determine whether a trade mark has acquired a distinctive character, and that it is possible to distinguish between survey evidence intended to demonstrate possible confusion, and survey evidence intended to demonstrate acquired distinctiveness.

Interflora (one of the leading cases on survey evidence) said that survey evidence should not be admitted unless the court is satisfied that the evidence is likely to be of real value; and the likely value of the evidence justifies the cost. Applying these factors, the court found that the surveys in this case would be of real value at the trial. The court believed that the trial judge would not be able to determine whether the mark had a distinctive character by using his own knowledge, and he would wish to guard against the possibility that his view might be somewhat idiosyncratic or not fully informed.

When assessing whether the value of the survey justified the cost, the court noted that the reasoning behind this was to protect the party opposing the admission from unnecessary costs. However, it was held that the defendant had spent more money on the cost of opposing the admission of this evidence than was estimated it would incur at trial, and so the court did not feel that costs were an issue in such circumstances. The survey evidence was allowed.

Commentary

Despite recent case law that seemed to sound the death knell for survey evidence; this case demonstrates that in appropriate circumstances, such evidence can still play in important role in trade mark infringement claims.