An Enterprising look at survey evidence

True to form, Mr. Justice Arnold's recent judgment in Enterprise Holdings Inc v. (1) Europcar Group UK Limited (2) Europcar International SASU [2015] EWHC 17(Ch) runs to an extensive 227 paragraphs.

Understandable considering he was faced with 34 trial bundles, 24 witnesses, and skeleton arguments and closing submissions that ran to several paragraphs!  Perhaps most interesting of all in this lengthy judgement is Mr. Justice Arnold's commentary on survey evidence.  It provides some useful post Interflora guidance to those considering embarking down this route and which should assist with getting the evidence through the "gatekeeper's" door.

By way of brief background, the dispute concerned the use by a car rental company, Europcar, of a stylised "e" logo which Enterprise (another heavyweight in the car rental market) claimed infringed its figurative UK and CTM marks for its "e" solus registered in various classes including vehicle rental services.  Enterprise also claimed passing off. The High Court agreed on both counts.

Before the liability trial, the parties had a two day hearing to argue over the admissibility of Enterprise's survey evidence assessing the distinctiveness of its marks and/or reputation/goodwill attaching to them – Mr Justice Morgan's conclusion in that hearing was that it was likely the surveys would be of real value at trial, and the likely value of the surveys would justify the costs.  On that basis Enterprise was permitted to adduce the results of the survey evidence.

At the trial, Europcar criticised Enterprise's surveys on a number of grounds, each of which were considered in turn by Mr Justice Arnold.  From his commentary, it is possible to extract some useful pointers to bear in mind when conducting a survey:-

1. it is acceptable to simply stop people on the street provided the survey contains a sufficient cross section of people. Interestingly, in this case the High Court found that it was acceptable to include US nationals in the survey as both companies had a presence in both the UK and the US;
2. it is common, and almost inevitable, that surveys will occur after the relevant date of the alleged infringement. This does not (of itself) mean that the survey has not been validly conducted and cannot cast light on the position at the relevant date, provided there has not been a material change in circumstances in the intervening period (e.g. an influx in TV advertising featuring the brand just before the survey);
3. a fine balance should be struck between the class of people surveyed and the scope of the issues surveyed – in this case, the Court found that Enterprise has correctly included within the scope of the survey consumers who had not in fact rented cars in the past, but intended to do so in the future;
4. Mr Justice Arnold commented on the need to avoid leading and speculative questions (i.e. the questions must not be framed in a way that invites the respondent to guess the right answer!);
5. beware of over contextualising survey questions – in this case, the Judge noted that contextualising the survey question to vehicle rental services could result in increased favourable answers for Enterprise (a presumption that was however rebutted on the evidence).

Mr Justice Arnold concluded that the surveys confirmed the conclusion he was in any event minded to reach having assessed all the other evidence in the case including in respect of the average consumer, likelihood of confusion, and inherent and acquired distinctiveness of the mark. Given that the survey evidence was not of itself definitive of the issues, the question still remains "when will the court consider a survey to be of real value?"

Where a party is seeking permission to adduce survey evidence, or is conducting a survey after permission is granted, Mr Justice Arnold's commentary should be of assistance in framing any survey. What real (or additional) value that survey will ultimately bring is uncertain.  It is difficult to see what monetary value was obtained from the survey evidence in this particular case – the results of the procedure prescribed in Interflora has been to put these two parties to the significant cost of a two day hearing in advance of trial (amounting to some £215,000 costs), which did not ultimately save any costs at trial and required the court to consider Europcar's criticisms of the surveys not once but twice!

Nevertheless, there are still cases where surveys are required (e.g. where other evidence is weak or unavailable) and in those cases a party must try and persuade the court that such a survey would indeed be of real value and justify the cost.