The court tends to treat surveys with scepticism, often holding that they are of little probative value on grounds such as that the people surveyed are not representative of the likely consumers of the product. In this context, the court is rarely of the view that the significant costs associated with survey evidence can be justified.

In Glaxo Wellcome UK v Sandoz, the High Court has again considered an application for survey evidence. Initially, the claimant alleged that the defendant was infringing its trade mark and passing itself off by using the colour purple in the packaging of its inhalers. In support of the trade mark infringement claim, the claimant collated survey evidence in support of acquired distinctiveness. The defendant was subsequently successful in obtaining summary judgment in relation to the trade mark claim, with the court concluding that the trade mark was invalid. The claimant, therefore, asked the court for permission to adduce this evidence in support of its ongoing passing off claim.

Having considered the decisions in Imperial Group v Philips Morris, Interflora v Marks & Spencer and Enterprise v Europcar, Mr Justice Birss gave permission. In doing so, he pointed to the fact that one of the surveys had adopted a three-step methodology (moving from open to closed questions) approved by a number of European courts and the EUIPO and that the people surveyed (GPs and pharmacists) appeared to be the representative as they prescribed the product. While he acknowledged the increased cost, he considered this to be proportionate to the value of the claim.

Case details at a glance

Jurisdiction: England & Wales

Decision level: High Court of Justice

Parties: GLAXO WELLCOME UK LIMITED (T/A ALLEN & HANBURYS) and GLAXO GROUP LIMITED (claimants) and SANDOZ LIMITED, SANDOZ INTERNATIONAL GMBH, AEROPHARM GMBH and HEXAL AG (defendants)

Citation: [2017] EWHC 3196 (Ch)

Date: 29 November 2017

Link to full decision (Bailii): http://www.bailii.org