Court uses social media to conduct survey on likelihood of confusion
China has by far the world’s largest and most active social media population. This has not escaped the notice of the Chinese courts, who are jumping on the bandwagon and beginning to use social media as a preferred medium to publish official news and significant judgments and to respond to enquiries of substantial public interest.
In addition to tapping social media as a means of disseminating information, in a recent ground-breaking precedent a Zhejiang provincial court has used social media to conduct a survey on the likelihood of confusion in a trademark infringement case.
On April 25 2014 the Zhejiang Shaoxing Intermediate People's Court broadcast a trial for an appeal of a trademark infringement case (Shaoxing Nv Er Hong Alcohol Co Ltd v Zhejiang Ta Pai Shaoxing Alcohol Co Ltd) on its microblog. During the trial, the court also conducted a survey on its microblog by posing the question: "Would you mistake the mark SHAO NV HONG for the mark NV ER HONG when purchasing (yellow) wine?" Regrettably, despite the fact that this new public survey approach was widely reported on World IP Day on April 26 2014, the total number of votes received by the close of the survey on May 2 2014 was only 35.
There is currently no definitive legal position in China on the admissibility and/or the value of online market surveys as supporting evidence for trademark litigation. In an article published in 2012 by the Intellectual Property Tribunal of the Supreme People’s Court, the tribunal cautioned the lower courts not to rely overly on market survey results, and directed that judges should instead focus on the legal test for likelihood of confusion. In the case of the survey conducted by the Zhejiang court, given the small number of votes returned, it is highly unlikely that the results will be taken into consideration by the court.
Apart from the various questions on the appropriate evidentiary weight of such surveys (on or offline), the positive development from this case is that it provides a precedent for using social media surveys for trademark litigation cases in China. If such an approach were to become widely accepted in China, it would provide a low-cost method for conducting public surveys for trademark litigation. However, the more interesting consequence of such use of social media by the courts is the potential practice of seeking the views of the "relevant consumer" in trademark cases - which could perhaps even extend to the courts referring to the opinion of the "general public" for other questions of fact.
Recent studies by market watchers and experts, such as consulting company McKinsey, have clearly pointed to social media's influence on purchasing patterns and decisions in China, much more so than in any other country in the world. The increasing role of social media may be part of the changes that are sweeping through the courts, and social media could possibly be used in appropriate cases as the new 'jury'. This would be an interesting space to watch.
Ai-Leen Lim and Laura Feng, Bird & Bird, Beijing
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