The High Court has allowed Interflora Inc to put into evidence the witness statements of 13 consumers at the forthcoming trial of the action against Marks and Spencer plc (M&S) relating to M&S use of keywords in Google advertising which Interflora alleges contravene its trademarks; in doing so, Arnold J considered carefully the Court of Appeal’s decision and new strict guidelines on the admissibility of survey evidence, and evidence from respondents to a survey given earlier in this action. Interflora had found the 13 witnesses following a filtering process, starting with some of its customers on a marketing database, and had disclosed full details of the process. The witnesses were customers of Interflora who had searched the internet for Interflora and had been exposed to the M&S advertising in issue. Arnold J decided that he should approach the application as outlined by the Court of Appeal, regardless of whether or not the evidence was technically a “survey”; he should consider whether the evidence of the witnesses was of value and whether the value of the evidence justified the costs involved. He rejected M&S’s arguments that the evidence was not representative of the legal construct through whose eyes the substantive legal question was to be assessed, or that it had been distorted by the process by which it was obtained: Interflora Inc and another v Marks and Spencer plc and another EWHC 273 (Ch), 21 February 2013. If you want advice on this or any other Intellectual Property matter, please contact Christopher Evans.
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