Like some of the earlier intellectual property law judgments of Peter Smith J, this one focuses rather more on the facts than on detailed analyses of the law -- and the judge was fully aware of his importance in the fact-finding process. After discarding all of the survey evidence ("the surveys have no evidential weight whatsoever"), he recites a charming little dialogue with Simon Thorley QC (who led for the claimants) which includes the following passage:
MR. JUSTICE PETER SMITH: I am quite happy to decide the case on my instinct, but I am not sure what my instinct is at the moment. I think that is the right view to have at this stage.
MR. THORLEY: Absolutely. I think your Lordship has to let the evidence wash over you.
MR. JUSTICE PETER SMITH: I agree.
MR. THORLEY: And at the end of the day you come together and say, right, what would the average consumer think? One of course has to avoid the trap of thinking that one is the average consumer.
MR. JUSTICE PETER SMITH: I avoided that trap in the last case I decided on this, because I decided I was an average consumer.
MR. SIMON THORLEY QC: I think, but in this that is why I told you what I did and did not do. I am not an average consumer in this market.
MR. JUSTICE PETER SMITH: And a slightly different beast in passing off.
MR. THORLEY: It is a slightly different beast for the purposes of passing off, yes.Ultimately, notes Merpel, the judge was influenced not only by a lack of admissible and probative evidence but by his assessment that Mattel's own employees were not only not confused by the appearance of Zynga's game but played it themselves.
How not to lose at Scrabble here
Why Boggle is better than Scrabble here