On 24 January 2014, the Court of Appeal (Elias, Lewison and Floyd LJJ) delivered judgment in the case of Zee Entertainment Enterprises Limited v Zeebox Limited [2014] EWCA Civ 82 with Lord Justice Floyd delivering the leading judgment. The appeal, in a passing off case brought by an Indian TV broadcaster against the publishers of a software ‘app’, focused on the value of market survey evidence sought to be adduced to substantiate the likelihood of deception. The decision of Birss J. refusing the Claimants permission to carry out a full survey was upheld for additional reasons, namely that the methodology of the survey was obviously flawed and would not be of real value in deciding the issues in the case.
The Court held that when considering applications to adduce market surveys in such cases, the underlying merits of the case are not relevant – rather the courts should scrutinise the value of the survey as evidence. In the present appeal, the survey for which permission was sought had "obvious flaws": it was targeted at an artificially-defined base population, it incorporated an acontextual stimulus and the key questions prompted respondents to speculate. Accordingly the survey did not have ‘real value’ and Birss J’s refusal of permission to carry out the survey was upheld.
Philip Roberts, instructed by Herbert Smith Freehills LLP, acted for the successful defendants.