Marks and Spencer v Interflora: Court of Appeal throws out hand-picked witness evidence

What happened

Interflora sued M&S for trademark infringement after M&S bought "Interflora" as a Google AdWords keyword, so that M&S flower delivery adverts appeared alongside Interflora's own search results. To support its case, Interflora ran survey exercises and then wanted to call as live witnesses only the people whose answers backed its argument, without using the surveys themselves as reliable statistical evidence. The High Court had allowed most of this evidence. M&S appealed against that decision.

What did the court decide in Marks and Spencer v Interflora?

The Court of Appeal allowed M&S's appeal. It held that evidence from witnesses selected this way was not admissible unless shown to have real value, where the likely benefit justifies the cost of using it, a tougher test than the previous approach of letting such evidence in unless it was shown to be worthless. The court also found the survey questions used to find these witnesses were leading, which tainted the answers they produced and, on its own, justified excluding the evidence.

What we learned from this

• What I'd take from this is that if you're relying on witnesses to prove customers were confused, you can't just keep the ones who agree with you and throw away the rest.
• If you're gathering consumer evidence for a trademark dispute, it's worth checking the questions you ask aren't leading and that the process could survive scrutiny in court.
• Evidence that costs a lot to produce needs to show real value before a court will let it in, not just the absence of obvious flaws.
• This ruling was about what evidence could be used, not about whether M&S's advertising actually infringed Interflora's trademark, that question was sent back for a later decision.

Things to be aware of

The businesses involved

What happened next

• The underlying dispute began with Interflora suing M&S at the High Court over its sponsorship of the 'Interflora' keyword.Source: Pinsent Masons, March 2009
• Following further proceedings, Interflora later won its trademark case against M&S over the Google AdWords advertising.Source: Theguardian, May 2013
• The dispute concerned M&S's own flower delivery service competing with Interflora's independent florist network.Source: Rpclegal, May 2013