Survey evidence: first trademarks, now passing off

The courts have given guidance on the use of survey evidence in the context of trade mark proceedings. But what about passing off proceedings? A recent High Court decision has shed light on the issue.

We described in an earlier article the comments made by the Court of Appeal in Marks & Spencer plc v Interflora on the use of survey evidence. Those comments were made in the context of trademark infringement proceedings. The High Court has now addressed the same issue in the context of passing off proceedings.

In ZEE Entertainment Enterprises Ltd v Zeebox Ltd the claimant operated a number of television channels in the UK under the ZEE brand, principally targeting the British Asian community. The defendant was a developer who marketed an app for television viewers called Zeebox. The claimant instituted trademark and passing-off proceedings.

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