The survey results
385 When interviewees who were shown Picture R or Picture V were asked (question 4) whether they remembered seeing any shop or shops using the sign shown in the pictures (that is, the name OPTICAL 88 or the '707 mark) 59% or more said "yes": see Table 5 of Dr Bednall's 2009 Report (Dr Bednall's Report). Interviewees who said "no" or "don't know" were then prompted to respond again by the following question (question 5): "Just to check, do you remember seeing any shop or shops anywhere using this sign, including in any suburb or country?" The respondents criticised this question as leading to an answer suggesting the possibility of use of the sign overseas. The question increased the "yes" answer by about 7% overall: see Table 6 of Dr Bednall's Report.
386 Those who answered "yes" to question 4 or question 5 were then asked to state where the shop or shops were (question 6). Interviewees were permitted to give multiple locations. The interviewees gave a variety of answers, some giving locations both in and outside Australia. No interviewee responded with more than four locations. Mr McCallum criticised Dr Bednall's presentation of the responses that were given in Table 8 of his report because of an inconsistent aggregation of responses and a reduction in the sample base on which percentages had been calculated. Mr McCallum re-expressed the data in his own version of Table 8. He accepted that his re-expressed results, considered as having been done in relation to "a general commercial sample", were "reasonably robust". Mr McCallum's re-expression of the data showed that, of the responses given, 48.7% of interviewees identified Hong Kong and its environs and 40.8% of interviewees identified Sydney, as locations where they had seen the sign in either Picture R or Picture V. Of the latter responses, 24.6% of interviewees gave a location that was either Campsie, Eastwood or Chatswood, and 17.8% of interviewees gave another Sydney location. It is important to note that all of these responses, in relation to both Hong Kong and Sydney (and, indeed, other locations) were based on the knowledge of interviewees as at the date the survey was conducted, namely July 2009.
387 However, interviewees were subsequently asked about when they first saw the shop at each location they had identified, using the sign in either Picture R or Picture V. The responses yielded a range of periods, from responses to the effect of "last year" up to responses to the effect of "20 or more years ago". Of the responses recorded in Table 10 of Dr Bednall's Report, over 70% said that they had first seen such use in the last 16 years (that is, at a time which can be taken to be after the commencement of business by the first respondent).
388 Mr McCallum criticised the presentation of this data in Table 10 and the conclusions that could be derived from it, particularly as reflected in the results presented in Table 11 of Dr Bednall's Report.
389 First, Mr McCallum identified (what Dr Bednall accepted to be) a significant coding error: a number of interviewees had indicated their first awareness to have been "in the 1990s", but their responses had been incorrectly coded as an awareness of "20 years or more". Because of the imprecise nature of these responses, there was no way in which they could be allocated correctly to any one group of responses (except to say that, as a minimum, they should be classified as 10 years ago). Significantly, it could not be said whether the awareness of these interviewees arose before or after August 1993. What can be said, however, is that the error is likely to have reduced (by some measure) the number of people expressing an awareness of the signs 16 or more years ago. Mr McCallum examined the responses of this latter group (comprising 27 interviewees) and identified other coding errors affecting the presentation of data in Table 11 of Dr Bednall's Report (to which I will shortly refer), which Mr McCallum said was not, as a result, reliable. The data showed that 15 of the interviewees came to Australia in 1994 or later (that is, after the commencement of business by the first respondent).
390 Secondly, Mr McCallum called into question, more generally, the reliability of the responses given by interviewees of when they first saw the sign in Picture R or Picture V. Mr McCallum commented on the fact that, when given such a task, interviewees will often turn to timeframes used in day-to-day intercourse (for example, a week ago, a month ago, a year ago, 5 years ago, 10 years ago, and so on). They will not generally give a specific year, unless it represents a main event in their lives. In this connection Mr McCallum noted a spike in the responses to this question corresponding with the handover of Hong Kong in 1997. Mr McCallum saw this problem of recall being compounded because the survey relied on responses that were too open-ended to be sufficiently meaningful (such as, for example, the reference to "the 1990s" referred to above).
391 Dr Bednall accepted that estimates of time are subject to errors of estimation and that the information that comes from these answers should be treated cautiously. However he argued that, for this sample, somewhat better recall might be expected from interviewees because of their memory of when they migrated to Australia or had made trips back to places of their birth, which would act as a reference point for them when giving answers.
392 In Table 11 of his Report, Dr Bednall represented the data to show the location by time when an interviewee first saw a shop having the sign in Picture R or Picture V. Dr Bednall concluded that, in the case of the Hong Kong and other Asian shops that had been nominated, the majority of the estimates (excluding certain "other responses") were for 10 years or more whereas, in the case of Australian locations that had been nominated, the majority of the time estimates were for three years or less (excluding certain "other responses").
393 In relation to the Hong Kong locations, Dr Bednall recorded that 11.4% of interviewees had expressed a first awareness of such a location in the last 20 years or more. As I have noted, Mr McCallum called into question the reliability of the data presented in Table 11 because of the coding errors he had identified. His analysis of the interviewees' individual records led him to conclude that the figure of 11.4% referred to by Dr Bednall should in fact be 5.2%. Dr Bednall did not comment on this recalculation, other than to accept the initial significant coding error to which I have referred. Thus it can be accepted that Dr Bednall's 11.4% figure, as reported in Table 11, is inaccurate. Taking Mr McCallum's recalculation, Table 11 indicates that (excluding certain "other responses") a clear majority of interviewees (58.5%) who recalled seeing a shop in Hong Kong with the sign in Picture R or Picture V said that they first recalled seeing such a shop in the last 16 years (that is, after the first respondent commenced business), with 8.5% saying they first recalled seeing such a shop prior to that time. Of course what remains in question is the reliability, in any event, of that recollection given the lengthy period of time involved.
394 There were a large number of other criticisms made about the survey methodology and results. It is not necessary for me to deal with all of these. I will however, note two additional criticisms that were significant for present purposes.
395 First, the respondents submitted that the survey failed to meet its objectives in that it could not reliably establish that the applicant had a reputation in Australia or that a member of the public would be likely to confuse the first respondent's business for the applicant's business, or otherwise consider the businesses to be affiliated with or related to each other.
396 The applicant accepted that it had initially informed the respondents that the purpose of the survey was to measure the reputation of the applicant's branding elements in relation to optical shops at relevant times, but that it was plain that the survey did not measure the applicant's reputation (or, perhaps more specifically, the nature and extent of any reputation the applicant had) or show any confusion between the two businesses. Rather, the applicant submitted that the survey was limited to measuring no more than awareness or recognition of the two signs shown in Picture R and Picture V. However, in that regard, the applicant submitted that the survey showed that, at the time it was conducted in July 2009, a very significant number of the "population of interest" recognised the signs as signs seen on shops in Hong Kong. Thus, the applicant submitted, the signs had a "secondary meaning" at the present time. I will return to this matter when considering, more generally, the parties' submissions on this topic. It is sufficient to highlight for present purposes that the critical question is the existence, nature and extent of the applicant's reputation in Australia as at August 1993.
397 Another significant criticism related to the sample used for the survey. Although the respondents accepted that interviewing predominantly people of Hong Kong origin was not, of itself, unreasonable, they submitted that the sample was deficient because it included those aged between 16 to 24 years of age. Dr Bednall acknowledged that over 20% of those interviewed were in this age group.
398 Mr McCallum gave evidence that, in commercial market research, it was not common to ask interviewees questions on topics that took place during the distant past, especially in early childhood, due to the degree of difficulty in the task and the relatively high risk of incorrect recall. His evidence was that, on the assumption that awareness as at July 1993 should have been tested (I have taken the relevant date to be August 1993, but I do not think anything turns on Mr McCallum's assumption in relation to the preceding month of July), persons under the age of 16 years at that date (or under 32 years of age at the time the survey was conducted in July 2009) should not have been interviewed, because it was unlikely that such persons would be in a position to reliably recall the stimulus material that had been presented for their consideration (namely, the signs in Picture R and Picture V).
399 Dr Bednall was cross-examined on this topic, as follows:
Question: Reflecting on 1992 or 1993 being a relevant date in this proceeding, if you had your way again, would you really have maintained, as an age group that constituted just over 20% of the sample, an age group where the minimum age was 16?
Answer: If I were instructed to focus on people who were of a certain age in 1992, then quite obviously, I would have designed this differently, yes.
400 Dr Bednall later accepted that, realistically, the minimum age of any person to be interviewed in the survey should have been "something like 25", if testing awareness as at 1992 or 1993 was a relevant consideration in the proceeding.
401 In my view this criticism of the survey and the reliability of its results is well-founded if the results are to be used for any purpose other than for showing awareness of the signs in Picture R and Picture V at the time the survey was conducted in July 2009.
402 Whilst acknowledging that he did not, as part of his analysis of the survey data, focus on answers relating to recognition of the signs in Picture R and Picture V in or before 1993, Dr Bednall accepted in cross-examination that it was possible to use the data to examine responses as to awareness at particular dates. Dr Bednall agreed that it was possible, for example, to do this using the sign in Picture V and 2003 as the date of reported first awareness of that sign.
403 Encouraged by this answer, the respondents undertook such an analysis in their closing submissions, in which they isolated from the 460 interviewees those who claimed to have seen the sign in Picture V; then isolated the interviewees further by reference to their responses to question 19 (when they first arrived in Australia) and questions 4 and 5 (recognition of shops using the sign); then removed interviewees who arrived after 2003 and who did not recognise the sign (thus leaving those who had arrived in Australia before 2003 and recognised the sign); and then sorted the data by the location at which interviewees said they first saw the sign.
404 The applicant, in its closing submissions in reply, criticised that analysis, submitting that there was no evidence that such an analysis would yield a statistically useful result that could be extrapolated to the relevant population of interest. The applicant also submitted that, unless such an exercise is undertaken by an expert, and opened up to criticism by an expert, it cannot be useful because of the need for expert judgment in classifying the data.
405 Whilst it does not seem to me that the exercise actually undertaken by the respondents (focussing as it does on the year 2003) addresses the relevant time for considering the existence and extent of the applicant's reputation in Australia, it does direct attention to the fact (which the applicant accepted in submissions) that the survey did not attempt to measure the applicant's reputation at any particular time before the dates on which the interviews were actually conducted. This, in my view, serves to underscore the limited utility of the survey.
406 In summary:
(a) The survey does not measure whether and, if so, to what extent, members of the chosen population of interest were misled or deceived by the first respondent's conduct in one or more of the ways alleged by the applicant.
(b) The survey does not measure awareness of the signs shown in Picture R (the name OPTICAL 88) and Picture V (accepted to be the '707 mark) as at August 1993 by persons who were resident in Sydney on or before that date. Table 16 in Dr Bednall's report shows that only 41% (approximately) of interviewees first came to live in Australia in or before 1993. It follows that a clear majority of the responses on which Tables 10 and 11 are based were given by interviewees who were not resident in Australia in or before 1993.
(c) The survey only sought to measure recognition by members of the chosen population of interest as at July 2009 of the signs shown in the pictures.
(d) The survey results, as presented, contain coding errors which affect the reliability of parts of those results.
(e) The survey results, as presented, include a significant proportion of responses (approximately 20%) from those in the 16 to 24 years age group as at July 2009 (who would have been aged 8 years or less as at August 1993).
(f) In so far as the survey results show the date of first awareness of the signs shown in the pictures, those results need to be treated cautiously because of possible errors of time estimation and because of the lack of specificity of a number of the responses that were given. In any event, the reliability of those results, as presented, is affected by each of the matters in (d) and (e). For those reasons, I do not regard the results as presented in Tables 10 and 11 of Dr Bednall's Report as reliable. I accept Mr McCallum's criticisms of them.
407 Finally, it should be noted that the population of interest in the survey (people resident in Sydney who were born in Hong Kong, Macau, Singapore or Thailand, who were aged 16 years and over and who wore contact lenses or spectacles) does not correlate with the population of Hong Kong-born residents in the data discussed by Professor Hugo. Moreover, as at August 1993 the applicant's stores were only operating in Hong Kong with one store in Macau. The expansion of that business to other countries (such as Singapore and Thailand) did not take place until later.