Survey and witness evidence in trade mark and passing off cases
Produced in partnership with Amanda McDowall of CMS and Sarah Wright of CMS
Survey and witness evidence in trade mark and passing off cases

The following IP practice note produced in partnership with Amanda McDowall of CMS and Sarah Wright of CMS provides comprehensive and up to date legal information covering:

  • Survey and witness evidence in trade mark and passing off cases
  • When is a survey appropriate?
  • Case law developments—a stricter approach to survey evidence?
  • Why use a survey?
  • Omnibus surveys
  • The basic requirements
  • Drafting survey questions and methodology
  • Who
  • What
  • Where
  • More...

This Practice Note summarises some of the legal and practical issues associated with the use of survey evidence and witness evidence in trade mark and passing off cases in the UK, both in the High Court and in the UK Intellectual Property Office (IPO).

Specific guidance is provided regarding:

  1. issues to consider when deciding if a survey should be conducted

  2. choosing which kind of survey is most appropriate in the circumstances

  3. basic requirements to be addressed when conducting a survey

  4. issues to consider when drafting survey questions and formulating survey methodology

  5. using surveys as witness collection exercises and the impact of the Jackson reforms

  6. what must be disclosed to the other side

  7. formalities for expert reports supporting surveys and the role of the expert

  8. obtaining permission to conduct a survey

  9. use of unsolicited consumer evidence

When is a survey appropriate?

Surveys are a controversial aspect of IP disputes and can sometimes be expensive and not particularly helpful so a party should carefully consider the prospective value of a survey and how it will be used in court.

Survey evidence is typically used in support of a claimant’s case, to assist the judge in deciding the key questions of whether or not the brand name, logo or get-up of the defendant's product or service is likely to cause confusion that the defendant's product or service is the claimant's or

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