The main objective of the trademarks law is to protect the interest of the consumers. It works on the principle that no confusion should exist in the market and consumers could easily identify the goods and their sources. Therefore distinct marks and logos are given recognition and protection under the trademarks law.
However there are cases where doubts and objections are raised by the authorities before registering any trademark so as to assure that the mark should not have any conflict with any existing mark. In order to get a mark registered as a trademark, an applicant is required to prove that his mark is distinctively new and bears no confusion in regard to any other existing mark. To prove his point, applicant who wishes to get his mark registered relies upon evidences and claims. Survey evidence is one such technique which is adopted by the applicant of the mark to prove that his mark is duly accepted and recognized in the marketplace and no confusion is created by his mark. Even proprietors of the registered marks resort to survey evidence while proving their say before the court of law. Survey evidence can help them prove their point on the question of likelihood of confusion in the marketplace.
Survey evidence is a tool of empirical research where numbers of people are interviewed with few questions that help in judging a particular situation. In cases of trademark registration, questions in regard to the mark and the applicant are asked but not directly while conducting such survey. The main aim of this type of evidence is to assure the market recognition of the applicant's mark.
Admissibility before the authorities
Survey evidence is a popular practice of proving one's stand before the authorities. Though there is no statutory basis for survey evidence in trademark cases but same is well accepted as a practice before the trademark registry as well as the court of law. Survey evidence proves to be really useful if the study is well-drafted and controlled. In general, survey evidence is admissible before the judicial authorities but the admissibility totally depends upon the discretion of the authorities.
Guidelines for conducting surveys
The Draft Manual for Trademark Practice and Procedure of 2009 provides with guidelines for applicants for conducting survey evidence. The guidelines can be summarized as below:
- The process of selecting the interviewees must be stated to the authority. The cross section of the relevant public chosen as interviewees give weightage to the credibility of the survey;
- Potential customers of the goods/services in regard to which the registration is sought must be the interviewees instead of those who might buy such goods/services;
- The number of invited participants and actual respondents must be disclosed.
- The number of persons issued with questionnaires or otherwise invited to take part in the survey should be disclosed;
- The name of the applicant for the trademark must not be disclosed at any time of conducting the survey;
- Use of one or more other marks in the questionnaire enhances the efficiency of the survey results. It also excludes the guess work.
There are many factors which determine the credibility of the survey evidence like timing of conducting such survey, content and questions asked during the survey, and other regulating techniques. Timing of conducting such survey is an important factor for a controlled and fair study. Surveys are generally conducted after the date of application. Precautions must be taken to make it difficult for the interviewee to distinguish the purpose of such survey.
Questions in the survey must be well-framed and asked in a general way. No question must be posed bearing an indication to the applicant's mark. Obvious or direct questions on applicant's mark may lead to undesirable results. For example: instead of asking "does this mark belongs to the applicant?" one should ask "who could you associate this mark to?" It is better to include two or three marks in the questionnaire, so as to assure the efficiency of the answers.
Applicants while producing survey evidence before the authority can refer to these guidelines, however, it nowhere implies that survey which fail to comply with these guidelines are useless altogether. Admissibility of such survey depends on how accurately it has depicted the situation in the market in regard to applicant's mark.
In the case of P.P. Hamsa vs. Syed Agencies [1990(2) KLJ 555] the court held that survey evidence cannot be assessed and relied upon unless the questions asked and answers given are recorded and those conducting the survey are subject to cross-examination.
While determining the perfect time for conducting such survey, the court in the case of Ayushakti Ayurved Pvt. Ltd. vs. Hindustan Lever Ltd [2004(28) PTC 59 Bom] held that survey evidences assist the Court substantially particularly at the stage of interlocutory stages where this issue becomes relevant.
In the case of Haw Par Brothers International vs. Tiger Balm Co. Pvt Ltd [1996 PTC (16) 311], Madras High Court], the court held that market survey reports can be relied upon by courts after recording evidence at trial and not in a motion.
It is quite evident that survey evidence is duly recognized as a technique to prove one's say before the judicial authorities while registering a trademark, there are still cases where the utility of these survey evidences have been questioned. It is pertinent to note that survey evidence is not conclusive proof on the question of likelihood of confusion instead it just assists the judicial authorities while they make their decision. Survey evidence turn out to be useful in few cases but their admissibility solely depends upon the discretion of the authorities. It would be better if the authorities draft a clear notion on the admissibility and utility of these kinds of evidences.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.