Survey research evidence in legal cases in Asia is on the rise

Counterfeiting and passing-off have long been facts of marketing life in Asia. But companies are  protecting their intellectual property (IP) rights more zealously and going to court to seek injunctions and damages against those who are thought to be ignoring those rights.

Initially, the plaintiffs were usually multi-national companies seeking to protect their trade marks but now local firms have followed suit. Another trend has been the use of survey research evidence in cases to reliably assess elements such as “goodwill” (what marketers would call brand equity) and the extent of confusion – aspects that were once argued in court without the benefit of independent survey research data.

Courts in Asia are now ruling on more IP and trade mark related cases and research is bound to become more widely used. Many researchers are reluctant to become involved either for fear of offending potential clients by being seen to “take sides” – some international research firms have a policy of not getting involved for this reason – or because they find the court room an intimidating experience (as it often is).

Researchers are far more comfortable in a collaborative client-agency environment and than in a High Court where opposing lawyers are vociferously attacking the integrity of the researcher and his/her data and conclusions!

Surveys that are used in legal cases have to be far more meticulous and rigorous than normal i.e. where the audience is a corporate marketing department and not a judge. Questionnaire design, sampling, interviewing, validation, data processing, analysis and reporting have to be done to a standard of execution and record-keeping far higher than is the norm in commercial research where compromises in design are often made for reasons of budget and timing and “topline” presentations in bizspeak dominate.

In legal cases, textbook research design rules. Clients may not generally care about universes, sampling frames, response rates and sampling error calculations but, in court, be prepared to answer hard questions on all of these fast disappearing aspects of our profession in the era of Research 2.0.

Judges are tough critics of shoddy or biased research. In Malaysia in 2008, a survey was rejected in a passing-off case. The High Court of Malaya quoted a British precedent… in Imperial Group plc v Philip Morris Ltd [1984] R.P.C 293 the court held that the following guidelines must be followed before market survey evidence is admissible:

  1. the interviewees must be selected so as to represent a relevant cross-section of the public;
  2. the size must be statistically significant;
  3. the survey must be conducted fairly;
  4. all the surveys carried out must be disclosed including the number carried out, how they were conducted, and the totality of the persons involved;
  5. the totality of answers given must be disclosed and made available to the defendant;
  6. the questions must not be leading nor should they lead the person answering into a field of speculation he would never have embarked upon had the question not been put;
  7. the exact answers and not some abbreviated form must be recorded;
  8. the instructions to the interviewers as to how to carry out the survey must be disclosed and; where the answers are coded for computer input, the coding instructions must be disclosed.

All these principles are enshrined in the Code of Conduct of the Market Research Society (Singapore) but how often have you read a research report that contains all of the above? In Sanbos (Malaysia) Sdn Bhd– vs –Tiong Mak Liquor Trading (M) Sdn Bhd) the survey research report was deemed to be of no probative value because the research methodology and full results were not fully disclosed, the questions were considered leading, some questions asked participants to speculate in areas in which they were not qualified, the instructions to interviewers were not published and so on.

If your report is going to be used in an Affidavit in court then you’d better be sure that your survey not only meets the highest standards of research but that you have all the necessary evidence to demonstrate it. Courts are not interested in hearing broad assurances from you that, for example, primacy and recency effects exist – you must quote a credible source to back up your claim. And forget PowerPoint presentations, all evidence must be in the detailed, discursive report format that courts use. Think “university thesis” rather than “client debrief”. And don’t forget to wear a nice suit and bow to the judge.

Asian Strategies has been involved in several cases as expert witnesses and witnesses of fact and, so far, we have enjoyed a perfect record of judgments or settlements in our clients’ favour. For more information, contact us at: info@asianstrategies.com

Photo: Old Supreme Court, Singapore. Siyuan
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