|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> ZEE Entertainment Enterprises Ltd & Ors v Zeebox Ltd  EWHC 1644 (Ch) (07 June 2013)
Cite as:  EWHC 1644 (Ch)
[New search] [View without highlighting] [Printable RTF version] [Help]
7 Rolls Buildings
London EC4A 1NL
B e f o r e :
(1) ZEE ENTERTAINMENT ENTERPRISES LIMITED
(a company incorporated under the laws of India)
(2) ASIA T.V. LIMITED
(3) ZEE MULTIMEDIA WORLDWIDE LIMITED
|- and -
1st Floor, Quality House, 5-9 Quality Court,
Chancery Lane, London WC2A 1HP.
DX 410 LDE Chancery Lane
Tel No: 020 7067 2900. Fax No: 020 7831 6864
MR. PHILIP ROBERTS (instructed by Herbert Smith Freehills LLP) appeared for the Defendant.
Crown Copyright ©
MR. JUSTICE BIRSS:
"Use Zeebox while you watch TV. It's social, clever and fun. Zeebox helps you discover, connect, share and interact all live as you watch. Find out more about what is live on screen with our live Zee tags. Zeebox plus TV is magic."
"The best TV guide around:
Remote control your connected TV, Sky + or TiVo box from your phone or iPad;
Chat live during TV shows;
Best of all it is a 100% absolutely, totally, free."
"(i) If a survey is to have any validity at all, the way in which the interviewees are selected must be established as being done by a method, such that a relevant cross section of the public is interviewed;
(ii) any survey must be of a size which is sufficient to produce some relevant result viewed on a statistical basis;
(iii) the party relying on the survey must give the fullest possible disclosure of exactly how many surveys they have carried out, exactly how those surveys were conducted and the totality of the number of persons involved, because otherwise it is impossible to draw any reliable inference from answers given by a few respondents;
(iv) the questions asked must not be leading and must 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;
(v) exact answers and not some sort of abbreviation or digest of the exact answer must be recorded;
(vi) the totality of all answers given to all surveys should be disclosed;
(vii) the instructions given to the interviews must also be disclosed."
"Evidence that is not useful should not be allowed to distract the focus of a trial, even if it is technically admissible."
"The value of the evidence is severely diminished if not eliminated by a failure to follow the Whitford Guidelines."
"(i) A party may conduct a true pilot survey without permission, but at its own risk as to costs;
(ii) no further survey may be conducted or adduced in evidence without the court's permission;
(iii) no party may adduce evidence from respondents to any survey without the court's permission."
"When applying for permission, as referred to in subparagraph 2 above, the applicant should provide the court with:
(i) the results of any pilot survey;
(ii) evidence that any further survey will comply with the Whitford guidelines;
(iii) the cost of carrying out the pilot survey and the estimated cost of carrying out the further survey."
"The objective of such an application is to have a definitive ruling one way or the other. It is a natural temptation for a judge who is not immersed in the case to leave questions of admissibility to trial. It is the temptation to which I succumbed in UK Channel Management Limited v E! Entertainment Television Incorporated. But balancing the cost of a survey (or witness collection exercise) against its likely utility, this temptation should be resisted."
"In deciding whether to give permission, the court must evaluate the results of whatever material is placed before it. Only if the court is satisfied that the evidence is likely to be of real value should permission be given. The reliability of the survey is likely to play an important part in that evaluation. Even then the court must be satisfied that the value justifies the cost. As Mr. Hobbs said, this requires the court to conduct a cost benefit analysis. In a case of trade mark infringement, in which the issue is one of deception in relation to the provision of ordinary consumer goods or services, these criteria are likely to be satisfied only in a special or unusual case."
"26. With the benefit of hindsight, perhaps I did not make my message clear enough in Interflora 1. Let me say it again but more loudly. A Judge should not let in evidence of this kind unless the party seeking to call that evidence satisfies him (a) that it is likely to be of REAL value; and (b) that the likely value of the evidence justifies the cost.
27. Thus, in my judgment, the judge should have asked himself whether the evidence was likely to be of real value. The negative way of framing the test means that evidence which was not of real value will be admitted in a case which, after all, is about the provision of ordinary consumer services.
28. I am unable to tell from the judge's statement that he considered that the evidence would be likely to have some value, whether he simply thought that the value would be more than minimal or whether he thought it would carry real weight. If the latter, I find it hard to identify why he thought that. In my judgment, therefore, the judge conducted a flawed analysis of the nature of the application, the quality of the raw data that supported the witness statement and ultimately applied too lax a test."
"(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (Emphasis added)
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party.
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
"30. As is well known, the growing cost of civil litigation has caused extensive changes to the civil procedure rules, which are due to come into force on 1st April 2013. Among the most significant changes is the recasting of the overriding objective so that it now becomes dealing with cases justly and at proportionate cost. It will make it all the more important for judges to exercise their power to limit or exclude technically admissible evidence which is not of real value."
"This is the name or logo of [app related to TV/website relating to TV]. What can you tell me about it?"
"Who do you think was responsible for Zeebox?"
"In the course of argument before us, the judge was criticised for having considered only those members of the public who had made inquiry of the school with a view to sending their children there. It was submitted that he wrongly allowed himself to be influenced by the consideration that the choice of a fee paying school for one's children is not an impulse purchase and that a parent who was considering the children's school for his children would be likely to make sufficient inquiries to eliminate any potential confusion that might otherwise occur. This would have been wrong, for the relevant public is not confined to parents who take up places at the school. The plaintiffs and the defendants appeal to a common section of the public - affluent members of the middle class who live in London, shop at Harrods and who wish to send their children to fee paying schools. They are persons who must be kept in mind when considering the likelihood of confusion."
"It is not a defence to a passing off that many of the defendant's sales do not cause deception or confusion. There is passing off even if most of the people are not fooled most of the time but enough are for enough of the time. By 'enough' I mean a substantial number of the plaintiff's customers or potential customers deceived for there to be a real effect on the plaintiff's trade or goodwill. In this case (where most of these are probably not confused) the crucial question is whether or not the plaintiffs have established a sufficient degree of confusion and deception to take the case above a de minimis level, for there are always some people who are confused and even when products and names are well differentiated mistakes do occur."