Newsletter
FLAWED MARKET RESEARCH NOT ADMISSIBLE IN EVIDENCE
Article 43 Paragraph 1 of the Trademark Act provides that an opposition petitioner or trade-mark right holder may submit a market research report as evidence in a trademark opposition ac-tion. Article 6 Subparagraph 7 of the IPO's Main Points for Determining a Well-Known Mark also allows a market research report as documentary evidence for determining whether a trademark or service mark is well known. But neither of these provisions defines the required methods or con-tent of such market research, and there have been widely differing opinions on these matters in practice.
In a 2004 judgment in a trademark opposition case, the Supreme Administrative Court stated that for a market research report to be admissible in evidence, it must meet the usual conditions for admissibility in evidence, and also be free of defects. Sampling from an inappropriate geo-graphical area or population would be a defect in market research, making it inadmissible.
To resolve disputes over market research reports in cases handled under the Fair Trade Act, the Fair Trade Commission (FTC) has issued its Guidelines for Assessing Market Research Re-ports Provided by Parties. The guidelines ad-dress eight key issues: credibility of market re-search firms; research methods; demographic data; design of questionnaire content; relevance of content to conclusions; causal relationship between conclusions and facts to be proved; statement of margin of error or confidence level; and academic and expert opinions.
However, in view of the differences between the matters regulated by Trademark Act and the Fair Trade Act, it remains to be clarified in practice whether the FTC guidelines can be entirely relied upon for guidance on the treatment of market research reports in cases handled under the Trademark Act.