ASSOS v ASOS: High Court provides further guidance as to survey evidence following Marks & Spencer v Interflora

The claimants, Mr Maier and Assos of Switzerland, are the owners of various community trade marks for ASSOS, under which they manufacture and sell, predominantly, cycle clothing. The clothing range is offered through various cycling retailers such as Evans Cycles, Wiggle and Chain Reaction Cycles. The defendants operate the online clothing store, ASOS.COM, and sell clothing aimed at the younger generation under the mark ASOS.

The claimants brought an action for trade mark infringement and passing off arising as a result of the similarity of the claimants’ mark, ASSOS and the defendants’, ASOS. In the interim, on 8 November 2012, the claimants filed an application seeking the court’s directions in respect of:

  • a witness collection exercise in which it intended to contact entrants to a “Win a Trip to Paris with Assos” competition published on 6 October 2012, and to be at liberty to apply to rely at trial on the witness statements obtained as a result of that exercise. As part of the prize draw, the recipients were asked “Can you tell us what you think of ASSOS, giving examples of what you like and do not like?” and “What, if anything, have you bought from us in the past?” Assos received 147 responses. The claimants estimated that the cost of contacting certain recipients of the prize draw as part of the witness collection exercise would be around £7,000
  • a survey which the claimants intended to conduct at the London Bike Show between 17 and 20 January 2013. According to the claimants, the survey would seek to test the use of the defendants’ sign in the form of clothes tags. The cost to carry out the survey was estimated at £13,000…

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