Consumer surveys have long been denegrated by Australian Courts as being of little use in trade mark cases to establish likelihood of confusion. The probity of these surveys has been of little concern for establishing trade mark distinctiveness because the key legal question for inherent distinctiveness has been the legitimate need for other traders to use the mark.

However, the High Court decision in Cantarella Bros (Cantarella Bros Pty Ltd v Modena Trading Pty Ltd [2014] HCA 48) has placed the consumers view front and centre to establishing distinctiveness. Does this mean that a swing back to acceptance of survey evidence must follow in trade mark case law? What is clear is that for consumer survey evidence to have any probative weight, the survey questions must be relevant and unambiguous, with a clearly defined and unbiased survey methodology.

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