Maier & Anor v ASOS Plc & Anor [2012] EWHC 3456 (Ch) (23 November 2012)

Maier & Anor v ASOS Plc & Anor [2012] EWHC 3456 (Ch) (23 November 2012)

Permission is granted for both the witness collection exercise (contacting prize draw entrants) and the survey at the London Bike Show because, at this stage, both are likely to be valuable in addressing the central issue of confusion and the costs are proportionate to their potential utility. The Interflora test applies generally to such evidence, requiring the court to be satisfied as to value and proportionality of cost.

Citation
[2012] EWHC 3456 (Ch)
Parties
Claimant: Roger Maier; Claimant: Assos of Switzerland SA; Defendant: ASOS PLC; Defendant: ASOS.COM Limited
Jurisdiction
England and Wales
Judgment Date
23 November 2012
Procedural Posture
Intellectual Property / Interlocutory Application for Directions Regarding Witness Collection and Survey Evidence
Outcome
Permission granted for both the witness collection exercise and the survey, subject to compliance with guidelines and further application for admission of resulting witness statements.
Legal Topics
Trade Mark Infringement, Passing Off, Survey Evidence, Witness Collection, Confusion, Goodwill
Intellectual Property Civil Procedure Trade Mark Infringement Passing Off Survey Evidence Witness Collection Confusion Goodwill

Case Brief

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Parties

Roger Maier

Claimant

Assos of Switzerland SA

Claimant

ASOS PLC

Defendant

ASOS.COM Limited

Defendant

Procedural Posture

Intellectual Property / Interlocutory Application for Directions Regarding Witness Collection and Survey Evidence

Legal Issues

  1. 1 Whether permission should be granted to contact prize draw entrants for witness collection
  2. 2 Whether permission should be granted to conduct a survey at the London Bike Show
  3. 3 Whether the evidence sought is valuable and whether its utility justifies the cost

Ratio Decidendi

Permission is granted for both the witness collection exercise (contacting prize draw entrants) and the survey at the London Bike Show because, at this stage, both are likely to be valuable in addressing the central issue of confusion and the costs are proportionate to their potential utility. The Interflora test applies generally to such evidence, requiring the court to be satisfied as to value and proportionality of cost.

Court Disposition

Permission granted for both the witness collection exercise and the survey, subject to compliance with guidelines and further application for admission of resulting witness statements.

Orders

  • Permission to contact prize draw entrants in accordance with the proposed procedure.
  • Permission to conduct a survey at the London Bike Show using the defendants' mark in appropriate context.