Glaxo Martin Howe QC and Iona Berkeley appeared for the Defendants, Sandoz, in the Claimants’ application for permission to adduce survey evidence, in passing off proceedings relating to the colour and get-up of the Claimants’ Seretide combination inhaler. This inhaler was made up of two purple colours, which the Claimants argued denoted trade origin.
The Claimants sought to adduce survey evidence which had originally been produced, as part of UK trade mark opposition proceedings, to support a case of acquired distinctiveness of one of the Seretide inhaler’s purple shades. They wished to use these surveys to support their case on distinctiveness for the purposes of their claim in passing off.
The Defendants argued that the surveys were so flawed as to be of little intrinsic value. The Defendants’ experts did not believe that the survey answers were truly verbatim, it was argued that the questions asked were leading, and the sampling method used was said to be flawed.
Birss J allowed the survey evidence to be adduced. He held that the Defendants’ criticisms of the surveys were not significant enough to establish at the interim stage that the evidence as a whole would be of no real value. It was found that substantial costs would be caused by admission of the evidence but that in the context of a high value commercial dispute the costs would not be disproportionate.