Are British Asians more likely to be confused? Wait and zee

Wait and Zee. Zee Entertainment Enterprises Ltd and others v Zeebox Ltd may not be the biggest and most important case to come before the Chancery Division of the High Court for England and Wales this year-- in fact it may be one of the least significant -- but it's an interim decision of the freshly-promoted Mr Justice Birss, upon whom all admiring eyes now rest.  There's no BAILII transcript (nor is there likely to be, since this an extempore decision), but the decision was noted on the excellent Lawtel subscription-only service this morning.

Zee Entertainment objected to Zeebox's choice of name and logo for its app for mobile devices, including its use of "Zee" and "Zee TV". In particular, Zee Entertainment alleged that British Asians, who were most likely to be familiar with Zee Entertainment's services, would be confused by Zeebox''s choice of name and logo. Having conducted two pilot surveys of British Asians, Zee Entertainment sought permission to carry out a full survey in order to corroborate their allegation that confusion was being caused.

According to Zee Entertainment, even if Zeebox's branding was not confusing for the whole of the population, it was legitimate for passing off purposes to look at whether it was confusing for a narrower group of people, such as British Asians. They also maintained that a full survey would be of real value as a means of discerning whether there was such confusion, and that those benefits justified the modest costs involved.

Referring to the recent outbreak of authoritative case law on survey evidence in Interflora v Marks & Spencer (noted by the IPKat here), Birss J refused the application.

This Kat prefers
ZZZ to Zee

In the learned judge's view, it was obvious that the evidence sought to be adduced would not be all the evidence that Zee Entertainment would be relying on it its claim. At trial, it would be able to call evidence in support of its case, including further evidence to the effect that British Asians had been confused by Zeebox's branding. If that evidence to be called was not enough for Zee Entertainment to win its case, it was unlikely that the survey evidence it sought to adduce in this application would make any difference.  While the survey evidence might confirm what the trial judge decided on the basis of the other evidence, it was unlikely that it would be of real value so as to justify the substantial cost of obtaining it.

Without knowing more about the facts on the ground, it is unfair to pass comment on this judgment. What can be said, however, is this: you have to have a jolly good reason for wanting survey evidence bedore you'll get it -- particularly where their probative value is likely to be low in the great order of things.  Merpel wants to know why British Asians should be regarded as particularly susceptible to confusion in this case. Can any British Asian reader enlighten her?