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IP & IT analysis: What does Champagne Louis Roederer v J Garcia Carrion S tell us about survey evidence, proving reputation and likelihood of confusion in trade mark infringement cases?
Champagne Louis Roederer (a company incorporated under the laws of France) v J Garcia Carrion S A (a company incorporated under the laws of Spain) and others  EWHC 2760 (Ch),  All ER (D) 47 (Oct)
What is the case about?
Louis Roederer (LR) produces various brands of champagne, the best known is ‘Cristal’. The mark CRISTAL is registered to LR in the UK in respect of champagne wines and as a Community trade mark (CTM) in respect of wines, sparkling wines, wines of French origin with the designation ‘champagne’. J Garcia Carrion (JGC) is a large producer of sparkling wine and also registered proprietor of a UK trade mark and CTM for CRISTALINO JAUME SERRA in respect of sparkling wines and wines.
LR claimed that the sales of CRISTALINO sparkling wine in UK supermarkets infringed LR’s marks under s 10(2) and s 10(3) of the Trade Marks Act 1994 (TMA 1994), and equivalent provisions under art 9(1)(b) and art 9(1)(c) of the Community Trade Mark Regulation (EU) 207/2009 (CTMR). This claim was also issued against Morrisons and Asda who settled with LR and subsequently withdrew sales under the terms of a Tomlin Order.
Given that the defendant ceased to participate in proceedings over two years ago, why did this matter go all the way to trial?
It was certainly an option for LR to apply for judgment in default and they would most likely have succeeded given JGC’s conduct. JGC did not respond to various court orders nor provide any disclosure or other evidence. In fact JGC ceased to instruct solicitors on this dispute more than two years prior to the trial. However, this case is part of wider proceedings in multiple jurisdictions—LR wished to proceed to trial in order to establish the merits of their claim. The High Court hearing afforded LR an ideal opportunity to test evidence and arguments.
In the context of increased judicial hostility to survey evidence, how did the court view the two surveys carried out on behalf of LR?
LR commissioned surveys in this case in order to establish that the mark CRISTAL has a reputation in the UK, key to their claim for infringement under CTMR art 9(1)(c) but also pert
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