IRP- Consumer Surveys: Can they be Conclusive Proof of Eliminating likelihood of Confusion or Proving Distinctiveness of a Trademark

A consumer survey is the instrument which is used to collect data on the attitudes and beliefs of consumers towards the concepts, products or names. The data is collated by various means inclusive mainly of the consumer queries through telephone contracts, shopping malls and the Internet. Litigants often use these surveys to convince the court if consumer confusion exists or not amongst trademarks in cases that allege trademark infringement. These consumer surveys help in providing direct evidence about the consumer perception that may lack in expert testimonies. Further, these surveys provide elicit multifaceted information with regards to perceptions which mere visual comparisons made between trademarks are unable to provide. In my paper I would talk about the various stances that have been taken by EU with regards to consumer surveys being an admissible evidence before the court of law. Further, I would talk about the various stances and conditions that have been taken and laid down by the High Courts of India while considering survey evidence as admissible evidence before the court of law. Further, I would elaborate on precise instances and cases to depict the same and if any certain law has been passed to the same effect recognizing survey evidence as an admissible evidence to prove the distinctiveness of the mark.