Passing off survey evidence
Zee TV is refused permission to adduce trade mark infringement and passing off survey evidence
Appeal from the High Court of Justice Chancery Division
Before: Lord Justice Elias, Lord Justice Lewison and Lord Justice Floyd
(1) Zee Entertainment Enterprises Limited
(a company incorporated under the laws of India)
(2) Asia TV Limited
(3) Multimedia Worlwide (mauritius) Limited
Judgment date: 24 January 2014
This was an appeal from the judgement of Mr Justice Birss. The claimant applied for permission to adduce survey evidence in a trade mark and passing off case and for directions. Zee TV is an Indian based satellite and cable television channel owned by the first claimant. Based in Mubai it broadcasts a wide range of programming in Hindi and other Indian regional languages. Zee TV was launched in India on 1st October 1992 and is India’s first Hindi satellite channel. Zee TV was launched in the UK in March 1995. The defendant is a UK company incorporated in England in 2011. named Zeebox. It launched an app called Zeebox in November 2011. The claimant issued proceedings for trademark infringement and passing off of its rights in its “Zee” family of marks. The defendant’s answer to passing off is that neither the Z device nor the word Zee are distinctive of the claimants in the field of TV broadcasting. In addition, the defendant contends that no substantial number of members of the public will believe that the defendant’s products or services are the claimant’s products or service or connected in the course of trade with the same. The claimant had done two pilot surveys and applied for leave to do a full survey and adduce the evidence as a result.
The claimants application was dismissed by Mr Justice Birss. This judgment is on appeal of that decision. The decision of BirssJ was upheld for additional reasons with the Court of appeal refusing permission to adduce the survey evidence because the survey was obviously flawed and would not be of real value in deciding the case.