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Trade marks: survey evidence and generic marks: the Malaysian position
This article looks at the issues surrounding the admissibility and probative value of survey evidence in trademark litigation and the test to determine whether a mark has become generic.
Survey evidence
Survey evidence has become common in infringement and passing-off actions, although the probative value of such evidence remains contentious. Such evidence is almost always challenged and rejected as being fundamentally flawed. Unlike in the United States, where it is relatively common for defendants to conduct independent market surveys to establish that there is no likelihood of confusion, in Malaysia it is usually the plaintiff that commissions such surveys. Plaintiffs that can afford to finance such exercises are drawn to the perceived value of market surveys undertaken by independent market researchers and private investigators in establishing confusion or likelihood of confusion. The cost of conducting a market survey in Malaysia is relatively reasonable in light of the results produced from such surveys.
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