IP Views

Survey Evidence:  Yes or No?
June 6, 2013
By Jewel Libatique and Jhoana Mutiangpili

Survey evidence is defined as “the term used to describe the result of a public opinion poll survey taken by statisticians and presented before a court as evidence to prove a particular fact in issue.“[1] A survey is “a scientific method of presenting evidence of mental association of a given group of people by asking a representative sample of the relevant target group.”[2] It is a convenient and reliable means of determining the opinion of a population, a task which would have otherwise been too cost prohibitive and impractical if each member of the population is called to the stand to testify. For this purpose, consumer surveys are conducted by interviewers who ask interviewees or survey respondents a set of carefully constructed questions that are aimed at objectively identifying the survey respondents’ opinion regarding a particular mark. The questionnaire may also include queries on consumer behavior if such determination will be helpful in formulating the survey population’s opinion. Moreover, a reasonable and objective selection of the sample (survey respondents) which would represent the universe (or target population) must be carried out in order to ensure that the answers that will be collected are an accurate representation of the general opinion of the target population as a whole.[3]  

In trademark and unfair competition cases, the facts typically in issue are likelihood of confusion,[4] existence of secondary meaning,[5] brand association,[6] and distinctiveness.[7] Survey evidence would come in handy when proving such facts. They are also useful in determining whether a particular brand has achieved a reputation as a well-known mark.[8] Surveys conducted among prospective purchasers are seen as a very effective and accurate means of identifying public opinion, more reliable than a judge’s determination based on his own perception of the public’s attitude towards a particular mark. The scientific character of the survey process lends it more reliability when compared to a direct determination of the judge which tends to be subjective and based heavily on impressions or even his personal and social biases.

Like any form of evidence, issues arise pertaining to survey evidence’s admissibility and weight in infringement and unfair competition cases. On admissibility, it is argued that survey evidence is inadmissible due to its hearsay character. According to this argument, survey evidence is inadmissible because survey respondents are not brought before the court for cross-examination regarding the statements they have made in the survey. It becomes hearsay evidence because the person who testifies on the survey evidence, i.e. the person who commissioned the survey, director/president of the research firm, survey supervisor, interviewer, etc., do not have personal knowledge as to the truth of the statements in the survey evidence.[9]

In order to overcome the hearsay objection to survey evidence, the doctrine of independently relevant statements is applied. Under the said doctrine, the hearsay rule is inapplicable to statements which are relevant regardless of their truth or falsity. These statements include those from which the facts in issue may be inferred, i.e. statements of a person showing his state of mind.[10] When an interviewer for instance testify on survey evidence, he is not testifying to prove the truth or falsity of what the survey respondent said but only to prove the fact that the statements were made by the interviewee in the course of the survey in order to express the interviewee’s state of mind, i.e. confusion, brand association, existence of secondary meaning, etc. For this purpose, jurisprudence in the US and UK suggest that it is sufficient that the interviewer, survey supervisor, survey director or survey planner be cross-examined for the survey to be admitted into evidence.[11]

On the other hand, there is no hard and fast rule on the weight of survey evidence in trademark cases. Generally however, the integrity of the survey as indicated by the manner in which it was conducted is essential in determining its probative value in relation to the fact in issue. For a trustworthy and accurate survey, the following principles of survey research must be satisfied:

…the accepted principles of survey research, namely that: (1) the proper ‘universe’ was selected and examined; (2) a representative sample was drawn from that universe; (3) a fair and correct method of questioning the interviewees was used; (4) the persons conducting the survey were recognized experts; (5) the data gathered was accurately reported; (6) the sample, the questionnaire, and the interviewing were in accordance with generally accepted standards of objective procedure and statistics in the field of such surveys; (7) the sample and the interviews were conducted independently of the attorneys in the case; and (8) the interviewers were adequately trained in the field and had no knowledge of the litigation or the purposes for which the survey was to be used.[12]

Abiding by the principles enumerated above ensures the objectivity of the survey results as well as the reliability of the survey for purposes of drawing sound conclusions regarding public opinion. Ideally, surveys must reflect the actual attitude or response of the consumers towards the mark or product. This is best delivered by a well-designed and properly implemented survey.                

Due to the infrequent use of survey evidence in the Philippines, there are even fewer instances wherein Philippine courts or tribunals rule on the requirements in submitting such evidence. Nevertheless, from these few cases, we can infer some factors that the court might consider in admitting or giving weight to survey evidence.                

In the case of San Miguel Pure Foods Company, Inc., v. Foodsphere, Inc.^[13] which is still pending before the Office of the Director General, the Bureau of Legal Affairs (“Bureau”) refused to give weight or credence to the surveys and/or the results thereof presented by both parties because these surveys were allegedly self-serving and negated each other. The Bureau also treated the surveys as mere hearsay. The Bureau held that:

Considering that what the surveys want to impress upon this Bureau is the actual or absence of confusion – or the likelihood thereof – from the point of view of a consumer, such response from a particular consumer is to be treated as testimonial evidence. Thus, without the respondents to the surveys being presented as witnesses and subjected to cross-examination or clarificatory questioning, the responses therefore are mere hearsay.[14]               

Consistent with the hearsay objection to survey evidence, the Bureau appears to be of the opinion that whenever a survey is presented as evidence to prove actual or absence of confusion, the survey respondents would have to be presented as witnesses. However, the need to present each and every respondent as a witness would defeat the purpose and/or value of conducting a survey. Also, as discussed earlier, it is possible to overcome the hearsay objection by presenting the interviewers, survey supervisor, survey director or survey planner.               

The Bureau also seems to suggest that the survey should be  concluded prior to the filing of the complaint or, at the latest, before the joinder of issues. The Bureau noted that the survey presented by the complainant was conducted after the complaint was filed and was not finished even after the respondent filed its answer. “In other words, the survey—which the Complainant’s presenting as evidence to prove its cause of action – was still being conducted at the time when there was already a ‘joinder of issues’ upon the filing by the Respondent’s of its Answer.”[15] The Bureau did not elucidate further regarding this matter and merely cited the belated completion of the survey as one of the reasons why said evidence cannot be given weight or credence. This appears to be a non sequitur conclusion. If all the principles of survey research have been met – more specifically number (7) that the sample and the interviews were conducted independently of the attorneys in the case – there should be no issue on when the survey was concluded with respect to questions of weight and credence. The reliability and independence of the survey is not automatically tainted by the fact that it was completed after the filing of the case.                

In the Supreme Court case Levi Strauss (Phils.), Inc., v. Tony Lim,^[16] while the admissibility of the consumer survey conducted to show actual confusion was not in issue, the Court did not give weight to the survey due to the unreliability of the method used. In this case, the interviewees were showed actual samples of petitioner’s and respondent’s respective products (jeans), approximately five feet away. They were then asked to identify the brand and state the reasons for thinking so. The Court held that, “[t]his method discounted the possibility that the ordinary intelligent buyer would be able to closely scrutinize, and even fit, the jeans to determine if they were ‘LEVI’S’ or not. It also ignored that a consumer would consider the price of the competing goods when choosing a brand of jeans.”[17] It is thus important that the method used in conducting the survey would take into consideration the actual circumstances that the ordinary consumer would be in. The proponent of the survey evidence in this case has failed to satisfy the accepted principle of survey regarding the “fair and correct method of questioning.“ Because the questioning failed to closely approximate the situation wherein consumers formulate their opinion regarding the product, the reliability and accuracy of the survey results also became questionable.               

In Matimco, Inc., v. Director of the Bureau of Trademarks,^[18] the Office of the Director General agreed with the respondent with her finding that the Appellant failed to show that the mark ‘ANTI-ANAY WOOD’ has already acquired "secondary meaning". The certifications presented by the Appellant, though purportedly signed by different persons, read alike in respect of the contents. The ‘certifiers’ did not indicate that they were specifically using Matimco’s ANTI-ANAY WOOD. Some of the ‘certifiers’ did not indicate the dates they started using MATWOOD and some of those who did, included dates prior to the commercial use of the mark. It is possible that the certification referred to other MATWOOD products and not specifically the ANTI-ANAY WOOD. For the foregoing reasons, the respondent found the evidence presented by the Appellant unconvincing to establish exclusive and continuous use, much less, the acquisition of secondary meaning. “According to her, the credibility of the evidence submitted by the Appellant is questionable, the statements in the certifications being self-serving, biased and apparently constructed neither by the certifiers nor by an independent survey body or expert. xxx.”[19] From this, it can be inferred that first, a survey would have helped prove their claim. Second, an independent body is preferred in conducting a survey. This adds credibility to the survey results that will be presented to court. This ruling did not contradict the accepted principles of survey research; however it would have been helpful if the Director General concretized and elaborated on the concept of an independent body.                 

The value of survey evidence in trademark and unfair competition cases is generally recognized. However, there is a long way before the Philippines can fully utilize the accuracy and reliability that survey evidence offers. Considering that commissioning surveys can be costly, litigants may be dissuaded from using survey evidence when there is no assurance that they will be admitted in evidence and given weight. To address this concern, there may be a need for a categorical ruling in jurisprudence or a promulgated administrative rule on the admissibility and weight of survey evidence. With this, there would be more litigants who would be encouraged to make use of survey evidence, making it easier for the courts and administrative tribunals to decide cases involving public opinion. There would also be less survey evidence that would be rejected and put to waste.

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