Saluda Foods Limited (Plaintiff)
v.
W. K. Buckley Limited (Defendant)
Trial Division, Heald J.—Toronto, January 30
and 31; February 1,2,3 and 9, 1973.
Evidence—Practice—Trade marks—Infringement action—
Motion for interlocutory injunction—Affidavits of public
opinion survey to show confusion between trade marks—Not
admissible—Rule 332(1).
Defendant put a cold remedy called MEDI•CITRON on the
market. Plaintiff sued for infringement of its registered trade
mark NEO CITRAN. On a motion for an interlocutory injunc
tion plaintiff filed affidavits of analysts and interviewers
employed by a market research organization showing the
results of a survey of 300 persons as to the extent to which
they were confused by the packages of NEO CITRAN and
MEDI• CITRON. Defendant moved to prohibit use of the
affidavits on the hearing of the motion.
Held, plaintiff was not entitled to use the affidavits.
Building Products Ltd. v. BP Canada Ltd. (1961) 36
C.P.R. 121; Paulin Chambers Co. Ltd. v. Rowntree Co.
Ltd. 51 C.P.R. 153, referred to.
MOTION.
COUNSEL:
D. S. Johnson, Q.C. and I. Hughes for
plaintiff.
R. Barrigar for defendant.
SOLICITORS:
MacBeth and Johnson, Toronto, for
plaintiff.
Smart and Biggar, Ottawa, for defendant.
HEALD J.—This is an application by the
defendant for an order striking out certain
affidavits filed on behalf of the plaintiff and
prohibiting their use on behalf of the plaintiff at
the hearing of the plaintiff's motion for an inter
locutory injunction in this action. The impugned
affidavits are:
1. The affidavits of Ronald Bondar dated
November 9, 1972 and January 20, 1973;
2. The affidavits of Lois Atkins dated
November 16, 1972 and December 28, 1972;
3. The affidavit of Philip J. Weingarden;
4. The affidavits of Fanny Whitlock dated
November 16, 1972 and December 28, 1972;
and
5. The affidavits of Jackie Brammer, Gaby
Flantje, Kim Geddes, Lynda Harley, Eliz-
abeth Kinsman, Karen Macdonald, Marg
Rennie, Eileen Semple and June Templeton.
Ronald Bondar says that he is Project Direc
tor for Elliott Research Corporation Limited
which firm was engaged to carry out a market
research investigation to determine if the con
sumer would or would not be likely to confuse a
newly introduced cold remedy medicine known
as MEDI • CITRON with the cold remedy medicine
already on the market and known as NEO
CITRAN.
Members of the Elliott staff interviewed 300
consumers divided into two groups of 150 each.
One group of 150 were asked questions on a
standard form of questionnaire in respect of
NEO CITRAN and five other cold remedies.
Anyone claiming to have used NEO CITRAN or to
be aware of NEO CITRAN was then presented
with a package of MEDI • CITRON and a package
of NEO CITRAN and asked this question: "You
mention that you know of NEO CITRAN. Just to
make sure I know what you are referring to,
please look at these packages and tell me which
product is the one you have been talking
about." The form then specifies five alternate
answers and the interviewer is instructed to tick
the one most closely applicable to the inter
viewee's response. The five alternate answers
are:
(a) NEO CITRAN specified, no confusion.
(b) NEO CITRAN specified, some confusion.
(c) MEDI•CITRON specified, no confusion.
(d) MEDI• CITRON specified, some confusion.
(e) Neither package specified, respondent not
sure.
The other group of 150 persons were asked
the identical questions concerning MEDI•CITRON
along with the same five other cold remedies.
Anyone claiming to have used MEDI•CITRON or
to be aware of MEDI• CITRON was presented the
two packages and asked the same question as
the other group and the same questionnaire
form with the same five alternate answers was
used. Mr. Bondar's affidavit of November 9,
1972, purports to analyze the results of the
survey and makes two salient points, first that a
significant percentage of the people who
claimed to be users of NEO CITRAN were con
fused as to which product they had in fact used
when simultaneously presented with both pack
ages and that an even larger percentage of those
interviewees who claimed to have been aware
of NEO CITRAN were confused when simultane
ously presented with both packages. Philip J.
Weingarden, also employed by Elliott and
engaged in market research for that company,
deposes to basically the same information and
makes the same salient or significant points as
did Bondar.
All of the other affidavits are from interview
ers who have attached to their affidavits the
completed questionnaire forms covering the
interviews which each interviewer completed.
Subject survey was carried out between Sep-
tember 4 and September 18, 1972. Two hundred
and seventy nine out of the total of 300 persons
were interviewed at the Towne & Countrye
Mall, Yonge Street and Steeles Avenue in Met
ropolitan Toronto and the remaining 21 persons
were interviewed in the Brampton Mall in
Brampton.
Counsel for the defendant cited the case of
Building Products Ltd. v. BP Canada Ltd.
(1961) 36 C.P.R. 121 where Mr. Justice Camer-
on rejected as inadmissible the results of a
public opinion survey. There are some differ
ences between that case and the case at bar as
was pointed out by counsel for the plaintiff. The
Building Products decision was a decision as to
admissibility at trial. This case involves admissi
bility on an interlocutory application in which,
under Rule 332(1), there is permitted deposi
tions on information and belief provided the
grounds therefor are stated. There is the added
distinction that, in the Building Products case,
the challenged evidence was by the President of
the survey firm who had no personal knowledge
as to the manner in which the questionnaires
were completed or as to the accuracy thereof,
whereas here, the affidavits in question, with
the exception of those by Bondar and Weingar-
den, are the affidavits of the interviewers them
selves. Notwithstanding these factual differ
ences, I have the view that many of the
objections expressed by Cameron J. on pages
129 and 130 of the report apply with equal
force to the case at bar.
The question of the admissibility of survey
evidence was also considered by Gibson J. in
the case of Paulin Chambers Co. Ltd. v. Rown-
tree Co. Ltd. 51 C.P.R. 153 and I consider his
comments on pages 158 and 159 thereof to be
equally apt to the facts and circumstances of
this case.
This survey was carried out in a two week
period in September of 1972, mostly in one
shopping centre in Metropolitan Toronto. The
interviewers were instructed to choose persons
in the same average age and income group.
Other than that, it seems to have been a random
selection at that shopping centre during that
particular period. We do not know anything
about the education of the interviewees, wheth
er they can read, whether they have any physi
cal disabilities, whether they are employees or
customers of the shopping centre and so on. It
seems to me that responses, under such circum
stances, can be of little probative value. I also
have the view that a survey for such a short
period of time, conducted in one area, in one
city of Canada, is far from being representative.
Furthermore, the response of the person
interviewed when it is recorded on the question
naire involves a subjective judgment on the part
of the interviewer; it involves the interviewer
deciding whether or not the interviewee was
confused and this involves an interpretation by
the interviewer of what the interviewee said.
There is no evidence as to the background,
knowledge and experience of the interviewers.
A particular response by one member of the
public might be interpreted in ten different ways
by ten different interviewers, depending on their
intelligence, their education and their experi
ence. Surely, to accept such evidence, based on
such unknowns and such variables, would be
unwise indeed. It is true that the interviewers
are before the Court and could be cross-exam
ined on their affidavits but the interviewees are
not before the Court, and the defendant would
be at a considerable disadvantage in endeavour
ing to obtain a complete picture of the various
interviews on the present state of the record.
The other objection which I have to this evi
dence is that the responses elicited in the ques
tionnaires were taken in an artificial environ
ment which does not reflect reality. As
Cameron J. said on page 130 of his judgment in
the Building Products case:
... the interviewers ... cannot possibly create in the minds
of those interviewed market conditions similar to those
encountered by persons actually going to purchase the vari
ous wares in question.
When a member of the public shops for a cold
remedy, the various available brands are usually
displayed in close proximity to each other. This
is quite different from being asked, by a stran
ger, a number of questions about a product
without having a chance to see these products
side by side where they can be compared.
There was also an additional circumstance in
this case and that is the fact that the plaintiff
itself has, over the years, marketed NEO CITRAN
in three different coloured packages, each quite
distinct from the other, and yet, those inter
viewees who were shown the two competing
packages, were only shown the blue package
presently being used in the marketing of NEO
CITRAN. This circumstance serves to underline
the unsatisfactory nature of this type of evi
dence. If the survey shows confusion in the
market place, the plaintiff may well have con-
tributed to that confusion itself. If some of the
interviewees had purchased or become familiar
with NEO CITRAN in the yellow and white pack
age, or the orange and yellow package previous
ly used, their confusion might not be related to
the defendant's packaging in any way but stem
solely and directly from the marketing practices
of the plaintiff.
For all of these reasons, I have concluded
that the defendant's motions to prohibit the use
of the affidavits set out on page one hereof, on
the plaintiff's motion for interlocutory injunc
tion, are well founded and I order accordingly.
The question of costs is reserved for consid
eration on the motion for interlocutory
injunction.
Counsel for the plaintiff has asked that the
above order be amended to the extent that the
following portions of the affidavit of Mrs. Lois
R. Atkins, sworn November 16, 1972:
(a) Paragraph 3 except for Exhibits B and D
and the conclusions drawn by the interview
ers in Question 7(a) of Exhibits C, E, F and
G; and
(b) Paragraph 6 except for Exhibit H
be admitted in evidence on the motion for inter
locutory injunction. Counsel for the defendant
has consented to this amendment and I order
accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.