Australian courts have traditionally been loath to accept survey evidence in trade mark, Australian Consumer Law ("ACL") and passing off cases. Numerous evidentiary issues that arise with survey evidence have been identified and discussed by Australian courts. However, it is apparent that even robust survey evidence has often been given little to no weight by Australian courts. This article considers the evolution of Australian case law concerning survey evidence in these types of cases; identifies some of the major roadblocks that parties seeking to rely on such evidence have faced; and compares the Australian position with that of New Zealand, the United Kingdom and the United States of America ("United States"). The inevitable conclusion is that different jurisdictions have taken vastly different approaches to the use of survey evidence, with Australian courts some of the most hesitant to accept such evidence. The authors of this article conclude that there is presently little reason to encourage clients to incur the (often significant) cost of conducting surveys for these types of legal proceedings. They also acknowledge that in some (if not many) instances, the cost and complexity associated with adducing survey evidence is unlikely to be justified. However, in other instances survey evidence, if prepared correctly, may assist the court; and the developments discussed in this article suggest that Australian courts risk being deprived of that assistance.
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