Marks and Spencer PLC v Interflora Inc & Anor

Marks and Spencer PLC v Interflora Inc & Anor

Evidence from witnesses identified by a statistically invalid or unreliable survey, especially where only those most favourable to a party are selected, is not probative of the effect on the legal construct of the 'reasonably well-informed and reasonably observant internet user' and should not be admitted unless the...

Source-derived case information.

Parties
Appellant: Marks and Spencer plc; Respondent: Interflora Inc; Respondent: Interflora British Unit
Jurisdiction
England and Wales
Judgment Date
20 November 2012
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
appeal allowed
Legal Topics
Trade Mark Infringement, Admissibility of Evidence, Survey Evidence, Passing Off, Costs Management
Intellectual Property Civil Procedure Trade Mark Infringement Admissibility of Evidence Survey Evidence Passing Off Costs Management

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Parties

Marks and Spencer plc

Appellant

Interflora Inc

Respondent

Interflora British Unit

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether evidence from witnesses identified by a survey (not statistically reliable and not itself relied upon) is admissible and/or should be excluded in trade mark infringement proceedings.
  2. 2 Whether the means of identifying witnesses (via a flawed or leading questionnaire) taints their evidence and justifies exclusion.
  3. 3 Whether the cost and utility of such evidence justifies its admission under the Civil Procedure Rules.

Ratio Decidendi

Evidence from witnesses identified by a statistically invalid or unreliable survey, especially where only those most favourable to a party are selected, is not probative of the effect on the legal construct of the 'reasonably well-informed and reasonably observant internet user' and should not be admitted unless the party seeking to adduce it demonstrates real value and proportionality of cost. The current practice of admitting such evidence unless shown to be valueless is wrong; the burden is on the party seeking admission to show utility and justification of cost.

Court Disposition

appeal allowed

Orders

  • Permission to adduce evidence from witnesses identified by the first and second survey exercises is refused.
  • The standard form of order regarding survey evidence should be revised as directed in the judgment.