Survey evidence is often easy to criticise but very hard to exclude. Judges tend to take the view that it (often) has limited probative value but is relevant, and therefore (usually) admissible, despite its flaws.
In Frucor Beverages Limited v The Coca-Cola Company  FCA 298, Yates J considered an interlocutory application seeking to have two affidavits excluded from an appeal from a decision of the TMO upholding an opposition to the registration of the appellant’s colour mark in relation to energy drinks (Trade Mark Application No 1496541). The TMO had rejected the mark on s 41 grounds (incapable of distinguishing) as that provision stood prior to the changes introduced by the Raising the Bar legislation.
An issue on the appeal was whether the hearing officer had erred in finding that the appellant has not established the requirement of s 41(6)(a) of the TMA (distinctiveness in fact as a result of use).
The affidavits in question concerned two surveys carried out by a market research firm. The surveys were said to assess consumer association between the relevant pantone (376C) and the appellant’s energy drinks. The deponent expressed the opinion that the surveys showed a “high level of identification between Pantone 376C and Frucor’s energy drink.”
The admissibility of the affidavits was challenged on grounds of relevance and “because their probative value is substantially outweighed by the danger that the evidence given by them might cause or result in undue waste of time or by unfairly prejudicial to [the respondent]“: s 135 of the Evidence Act 1995 (Cth).
The relevance ground was based on three contentions:
(a) the surveys were conducted two and half years and three and a half years after the mark’s priority date and therefore could not be probative of the question of actual distinctiveness at the relevant date (for the purposes of the pre-RTB s 41(6)). The respondent relied on the Court’s doubting of the probative value of late survey evidence in Optical 88 Ltd v Optical 88 Pty Ltd (No 2) (2010) 275 ALR 526 (Optical 88) at  and - and Apple Inc v Registrar of Trade Marks (2014) 227 FCR 511 at .
(b) the statistics produced by the surveys were “unremarkable” and the level of identification was overstated by the charts and tables in the report; and
(c) the surveys failed to show use of the mark “as a trade mark” – mere association is insufficient – it must be association in a trade mark sense. The respondent relied on the comments of the Full Court in Woolworths Ltd v BP plc (No 2) (2006) 154 FCR 97;  FCAFC 132.
Justice Yates noted that in Optical 88, Apple and Woolworths, despite the criticisms of it, the survey evidence was not excluded. Further, in the instant case, the deponent had sought to tie the results of the surveys to the relevant date. This was a feature that was absent in Optical 88 and Apple. His Honour was not persuaded that that the affidavits “should be rejected at the outset as lacking relevance on the basis that, as CCC contends, the surveys should be given no weight at all.”
After noting that there will be other evidence before him at the substantive hearing, his Honour said:
“The point of present significance is that I should proceed cautiously before concluding that, in advance of the hearing, when all of Frucor’s evidence will be before the Court, some part of that evidence should be rejected now as lacking relevance.”
Discretionary rejection: s 135 Evidence Act
To succeed in having evidence rejected pursuant to the statutory discretion provided by s 135 of the Evidence Act 1995 (Cth), an applicant must show that the evidence’s probative value is “substantially outweighed” by the danger that it might “be unfairly prejudicial to a party“, be “misleading or confusing” or “cause or result in undue waste of time.”
Justice Yates did not accept that any of these grounds were made out and so the discretion was not enlivened.
The application to have the affidavits excluded was dismissed with costs.
It will be interesting to see what Justice Yates says about the probative value of this evidence in the substantive decision.