ASSOS v ASOS: court lets ASSOS gather witness and survey evidence over brand confusion
ASSOSvASOS Plc
- Court
- High Court
- Judgment
- 23 November 2012
- Citation
- [2012] EWHC 3456 (Ch)
Courts will let you gather confusion evidence before trial if it's useful and the cost is proportionate.
Cycling clothing brand ASSOS sued online retailer ASOS over claims shoppers confused the two names. The court allowed ASSOS to contact prize-draw entrants and run a trade show survey to help prove its case.
What happened
ASSOS, a cycling clothing brand, took on online fashion retailer ASOS, arguing the two names were close enough to cause trademark infringement and passing off (where one business's name or branding is used in a way that misleads customers into thinking it's connected to another). Before the main trial, ASSOS asked the court for permission to do two things: contact people who'd entered a newspaper prize draw run under the ASSOS name, and run a consumer survey at a bike trade show using the ASOS name. The aim was to gather evidence that real shoppers were mixing up the two brands.
What did the court decide in ASSOS v ASOS Plc?
The court applied a test set out in the Court of Appeal's Interflora decision, which asks whether evidence gathered through witness collection exercises or surveys would be genuinely valuable and whether that value justifies the cost of producing it. The judge found both exercises passed that test. The costs involved were modest compared to the overall case, and the question of consumer confusion sat at the heart of what ASSOS was trying to prove. Permission was granted for both exercises, with the survey required to use the ASOS mark in a realistic context, such as on a clothing tag, rather than in isolation.
What we learned from this
- What I'd take from this is that courts aren't automatically hostile to surveys and witness evidence in brand confusion cases. If the evidence genuinely bears on the key issue and the cost is proportionate, permission can follow.
- If your case turns on whether customers are actually confused between two names, logos or taglines, think early about what evidence could demonstrate that, whether through surveys or real customer contact.
- Expect courts to weigh the cost of any evidence gathering exercise against how central it is to the dispute. Modest cost relative to the overall case helps your argument for permission.
- Surveys need to reflect how customers actually encounter a mark in real life, such as on a product tag, not in a stripped out or artificial format.
Things to be aware of
- This was a procedural ruling about gathering evidence, not a decision on whether ASOS actually infringed ASSOS's trademark or amounted to passing off.
- The Interflora test looks at cost versus value for this kind of evidence gathering exercise. It doesn't guarantee that survey evidence will carry weight at trial.
- Permission came with conditions, such as how the ASOS mark had to be presented in the survey. Courts can restrict how evidence gathering exercises are carried out.
The businesses involved
The claimant
Associated with ASSOS, the cycling clothing brand that brought the trademark infringement and passing off claim against ASOS over similarity between the two names.
ASOS Plc
Registered in England in June 2000 and still active, based in London. An online fast-fashion and cosmetics retailer holding 111 UK trademarks on the UK trademark register.
- Companies House
- 04006623 Active
- Incorporated
- June 2000
- Registered office
- London
- Business activity
- Activities of head offices
- UK trademarks
- 111
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This page is for information purposes only and does not constitute trademark advice or guidance. Summary drafted with AI assistance from the published judgment and checked by The Trademark Helpline (how we write these). Judgment: [2012] EWHC 3456 (Ch) on Find Case Law, published under the Open Justice Licence. Company details from Companies House; trademark counts from the UK trademark register. Last reviewed 27 October 2026. Report an error.
