Can market research be used as evidence?

Market research or surveys are often required as evidence. Legal teams and their expert witnesss should be careful when using market research and survey evidence as it can sometimes be ignored or discredited. The three key things to consider are:

1. Market research or surveys should be used as evidence to avoid over-reliance on personal opinion.
2. Market research and surveys should be carried out by a qualified expert.
3. Guidance should be sought from the court prior to market research or surveys being carried out.

Two recent examples of market research and surveys being used as evidence illustrating this are:

1. Direct Line vs esure (July 2008) (June 2007)

Direct Line sought to prevent esure from using and registering as a trademark a mouse-on-wheels device, alleging this was confusingly similar to its own telephone-on-wheels device. This case is interesting as it provides guidance on the use of expert witnesses and how market research should be presented.

Direct Line’s brand expert’s evidence was rejected as being personal opinion which the court was just as qualified to form. The consumer research was also rejected as “the directions of the court as to the scope or methodology of any proposed consumer survey that the parties may desire to put in evidence at trial” had not been sought. Also, Direct Line’s own solicitors carried out surveys which the judge dismissed because “they were not independent professional surveys by experts in the field”.

2. Diageo vs InterContinental Brands (January 2010)
Diageo alleged that InterContinental Brands (ICB) was passing-off its Vodkat product as vodka thereby causing confusion and damage to Diageo’s own vodka brand, Smirnoff. The judge found for Diageo, stating that “’vodka’ does have a reputation giving rise to a protectable goodwill” which ICB’s Vodkat brand was infringing.

Both sides employed expert witnesses. One of the experts for ICB produced market research to support their position. The judge stated: “Quite properly, ICB first carried out a pilot survey and then applied to the court for permission to carry out and adduce in evidence a full-scale survey.” However, the judge still expressed three criticism of this research (paragraphs 159 to 165), regarding the sample of respondents, the way in which the data was recorded and analysed, and the poorly drafted questions.

In summary, even when the correct protocol is employed regarding using marketing research as evidence and survey evidence there are still limitations over its acceptance. To aid its acceptance, a recognised professional should be used to conduct the research and its methodology should be validated by the court prior to it being carried out. If this is done, the court will find market research or survey evidence useful, especially when used to enhance or support an expert’s opinion.

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