Survey Evidence in Canada. Douglas Deeth Deeth Williams Wall LLP Toronto, Canada

1. Survey Evidence in Canada. Douglas Deeth Deeth Williams Wall LLP Toronto, Canada

2. The Paradox of Surveys Courts are anxious to have survey evidence, but Courts are very quick to reject a survey if there are perceived to be problems with it.

3. Issues in Trade Mark Cases Many are Primarily Factual Retrospective Acquired Distinctiveness or Secondary Meaning Reputation and Goodwill Prospective Likelihood of Confusion

4. Why Survey Evidence? Efficiency saving of time and money Accuracy Gives a truer picture than assessment of facts by judge alone. Reality Brings the real world into the courtroom

5. Surveys are efficient. �� the only evidence before me was of a professionally conducted survey by experts in their field which was of greater assistance to the court than to proceed in the archaic fashion of parading any number of random witnesses before the court to perform precisely the same function as did the surveyor. The survey was far more efficient and beneficial to the court.� Sun Life Insurance v. Sun Life Juice, 1988

6. Surveys introduce Reality "... it is not the likely effect of the use of the two marks on the mind of the judge that is in issue. � What is to be determined is whether there is a likelihood of confusion in the minds of dealers in and/or users of the goods on which the marks are used.� �To attempt to make such a determination without regard to evidence of what others may think or have said would to my mind be nothing more than an exercise in pure judicial fantasy �� Sun Life v. Sun Life Juice, 1988

7. Surveys in Common Law Courts Hearsay Opinion

8. Surveys in Common Law Courts Initially found to violate the rules against use of hearsay evidence. Hearsay � evidence of people not before the court No cross-examination available Lack of Personal Knowledge of the method by which the questions were asked and the answers recorded

9. Surveys in Canadian Courts Professional surveys then accepted as basis for expert opinion Use of survey to confirm or bolster opinion of expert in the relevant field allowed court to admit survey without having to rely on it exclusively.

10. Surveys in Canadian Courts Accepted by Courts in other cases E.g. to establish community standards in obscenity cases To establish value of real estate Concurrent relaxing of rules relating to opinion evidence

11. Surveys as Hearsay �This type of evidence is no doubt useful and may be admissible in certain � tribunals not bound by the laws of evidence. In my view, however, it is purely hearsay evidence and not within any of the exceptions to the rules excluding such evidence.� Building Products Ltd. v. BP Canada Ltd. (1961)

12. Lack of Personal Knowledge �No matter what attempts may be made to insure that the survey is conducted in an impartial and objective fashion, the fact remains that the witness who tenders the report ... has no personal knowledge as to the manner in which the questions were submitted or that the recorded answers are those actually made by those interviewed.� Building Products Ltd. v. BP Canada Ltd. (1961)

13. Inability to Cross-Examine �But the main objection to such evidence is that the witness is endeavouring to state certain conclusions based on opinions � expressed by individuals who are not before the Court and � not .. subjected to the test of cross-examination." Building Products Ltd. v. BP Canada Ltd.

14. Changing Views �Therefore, there is no better evidence as to the likelihood of confusion than members of the public giving evidence as to whether they would or would not be confused by the use of particular trade marks. This question � bears directly on the issue of the desirability of survey evidence which has largely been rejected by the Courts not only on the basis of admissibility but also on the basis of its utility.� David Scott, 1968

15. Changing Views �If evidence of actual confusion is to be admitted, � then evidence from individual witnesses as to the likelihood of confusion on their part should not only be admitted, as it presently is, but it should be given appropriate weight in appropriate circumstances. In its absence, there can only be the opinion of a single member of the public, namely the trier of fact � � David Scott, 1968

16. Efficiency of Surveys �When a litigant tenders the evidence of a large number of witnesses, he is attempting to persuade the Court of a particular fact by a sampling of the community of consumers. Thus, for decades, the Courts have had before them affidavits from large numbers of consumers attesting to certain mental and psychological reactions on the part of various segments of the public.�

17. Efficiency of Surveys �Survey evidence introduces the concept of proving the public attitude without sworn statements from members of the public themselves, through the evidence of an "expert" in market research to assist the Court in determining the conclusion that would have been reached if all those survey had given evidence.� David Scott, 1968

18. A Landmark Decision �Basic to the admissibility of such surveys has been the acceptance of the public opinion polling as a science when approved statistical methods, social research techniques, and interview procedures are employed.� R. v. Prairie Schooner News, SCC 1970

19. Admissibility vs. Weight �It is well understood that the expert must be qualified and that the survey must be conducted according to the rules of the art, that the compilations must be verified and that the results must also be interpreted according to the experience and the basic rules of the science and the art. The rest is a question of probative value.� Cordon Bleu v Bradley, 1979

20. Effect of Legal Issues Questions to be asked Population surveyed Sample selected Manner of asking the questions Persons conducting the Survey Reporting the Results

21. The Survey Team The trade mark attorney The �expert� The survey company Supervisor Interviewers Data compilers and analysers

22. What Do You Want to Measure Recollection What colour is a can of Coca-Cola? Recognition Do you know who makes this product / a soft drink that is packaged in a red can? Meaning What does it mean if two cans of soft drinks are the same colour?

23. How do you do the measuring? What are the questions to be asked? How are they asked? Who are questioned? Who does the questioning? Who analyses the results? Who presents the results?

24. Designing the Survey Close cooperation between the trademark attorney and the expert Expert must have full knowledge of the issues in the case affecting the survey Focus on the correct issues Meaning, recall, recollection, confusion Anticipate all possible criticism Build in controls.

25. Define the Relevant Universe Actual Users Of the defendant�s product Of the plaintiff�s product Potential Users How remote? Non-Users

26. The Proper Universe �Essential to admissibility is the � selection of the proper "universe", i.e., that segment of the population whose characteristics are relevant to the question being studied. � If, and only if, the sample is correctly selected can it be said that the opinions found to exist in the sample are representative of the entire universe.� R. v. Prairie Schooner News, SCC 1970

27. Importance of potential users Failure to identify all potential users may lead to rejection of survey Failure to limit to users and potential users may have same result Potential users are harder to identify. Those suffering from illness Those who have seen a doctor Those who have received a prescription

28. Who are potential users? �That cohort may have more relevance for consumers of alcoholic beverages than for consumers of real estate broker's services. I do not believe that the opinions of persons who may never have contemplated using the latter services are directly relevant, for they may not encounter any circumstance likely to give rise to confusion from the trade mark as used by the broker� Joseph E. Seagram & Sons Ltd. vs. Seagram Real Estate Limited

29. Distinctions within Universe Survey must capture and reflect views of all members of the relevant universe. Survey must allow for differences in sub-categories to be measured Gender, age, income Other factors relevant to issues Recognizing these before doing survey protects against some attacks on survey Can dramatically increase costs

30. Three important Groups General Population Some people excluded Target population or universe Users and potential users of fishing lures �Representative Sample� Sample from the general population Representative of the target population

31. Representative Sample Start with General Population Initial screening to eliminate those whose views are not of interest Reduces cost May introduce bias May eliminate those who should be considered

32. Representative Sample Start with General Population Determine the peculiar characteristics of those whose views are of interest Limited preliminary screening Questions at end of survey used to eliminate some respondents Higher cost Reduces risk of bias

33. Who is Representative? Identify the relevant �universe�. Does that �universe� differ from the general public, or any other available group Can the views of that relevant universe be separated from the views of non-relevant universe without biasing the results? Identify a group from whom a random sample can be selected Are adjustments to a random sample to make that sample representative of the relevant universe.

34. Obtaining the Sample

35. Adjustments to Sample Adding more respondents To compensate for losses in screening To compensate for population variances To make a random sample representative Adjusting mathematically is not as acceptable

36. Avoiding Bias Wrong Universe Improper Screening Improper Sampling Wrong Questions Improper Analysis

37. Bias in Screening Screening is done To reduce the sample size To eliminate those whose views are not relevant To reduce costs Screening may introduce bias May tell interviewee why he or she has been selected

38. Bias in the Questions �I am going to show you some anti-depressants with the name removed� (product shown) �Can you see the product as clearly as you would see a product that had been prescribed for you� (product removed) �What if anything came to mind when you saw the product I just showed you.�

39. Bias through Speculation The question should not: '"...direct the person answering the question into a field of speculation upon which that person would never have embarked had the question not been put"'. Imperial Group v. Philip Morris

40. Bias in the Survey Process Prompt and probe for answers Encourages guessing Guessing favours known brands] Controls may avoid this bias

41. Controls When capsules are the same colours, what, if anything, does it mean to you? When bank cards are the same colours, what, if anything, does it mean to you? When chewing gum packages are the same colours, what, if anything does it mean to you?

42. Conducting the Survey Establish and maintain the locale Follow the script Interviewers should have no room for improvisation Where appropriate, probe for all possible answers Supervise the interviews Record the results

43. Analysis of the Results Subcategories of respondents �Coding� of the answers �don�t know/maybe/don�t remember �the one I saw was not that colour� Statistical analysis Calculation of error Conclusions

44. Presentation of the Results Complete disclosure of the methodology chosen and reasons for rejecting others Confirmation that all interviewers followed the chosen methodology Complete disclosure of all results, including any that are not favourable. Analysis of results Conclusions Drawn

45. Who Should Give Evidence Survey Designer Instructions received Explanation for design of survey Survey or market research company How survey was conducted How results were recorded and analyzed Marketing Expert May give evidence on survey conducted by someone else

46. Disclosing the Results [S]urvey evidence � can only be of weight if � the fullest possible disclosure of � how many surveys [were] carried out, � how those surveys were conducted and the � number of persons involved, because otherwise it is impossible to draw any reliable inference that answers given � in one survey might � indicate that similar answers would be given [in] a survey covering the entire � population Imperial Group v. Philip Morris, UK 1984

47. Evidence Required "The affidavits of the persons who actually conducted the interviews were not offered as evidence by the appellants. �The affidavits of [the experts] are of little assistance in determining how representative the results of this survey actually are since they were not present while it was being conducted. � Joseph E. Seagram & Sons Ltd. Vs. Seagram Real Estate Limited

48. Evidence Required �Here there was no affidavit from anyone actually involved in the survey's completion, and no direct evidence of the manner in which questionnaires were completed or the accuracy of the completed returns.� Joseph E. Seagram & Sons Ltd. Vs. Seagram Real Estate Limited

49. What should be in Court Initial survey design Pre-testing results and any changes to survey Instructions to interviewers Materials used to select respondents Records of all interviews Tabulation of results Statistical analysis

50. Analysing the Numbers There are no magic percentages that mean win or lose Validity of results depends on all variables in the survey Significance of the results depends on market and on the consumers Significance of the results depends on the issues in the case and the remedies

51. Recent Survey Criticisms absence of evidence as to the manner in which the questionnaires were completed limited locations where the surveys were conducted absence of control questions weakness of word association surveys compounded by artificial stimuli introduced into the questions ambiguity in the interpretation of the survey

52. Conclusions A properly conducted survey is essential to any significant trade mark litigation Surveys are expensive, but attempts to cut corners will lead to problems No survey, however well it is done, will be of any use if it is not properly presented to the court