The Use of Survey Evidence in Australian Trade Mark and Passing Off Cases

Consumer confusion lies at the heart of most actions for trade mark infringement. Statistically objective surveys are the most scientific way to get generalisable evidence about what consumers think and whether there is a case for confusion or potential confusion. However, only one in ten Australian court cases over the last twenty years have involved survey evidence and this rate has been declining over time. The reason for this decline can be traced to the way the courts treat such evidence. We find no statistical evidence that tendering survey evidence affects the court decision – either in favour or against the survey owner. Furthermore, courts have made it clear that they are prepared to make decisions on the likelihood of confusion, with no recourse to empirical evidence and on the basis of their own inferences and judicial ‘common sense’. Given these attitudes and the formal requirements of the courts, there is little reason for a litigant to conduct a survey or for opposing parties to offer critique prior to the survey being conducted. We suggest that a better approach would be for courts to give clearer requirements on how to offer market research evidence in a way that the court will admit and find persuasive