Section s3(1)(d) of the Trade Marks Act 1994 (the Act) states that:

 3. - (1) The following shall not be registered –

 (d) trade marks which consist exclusively of signs or indications which have become customary in the current language or in the bona fide and established practices of the trade:

 This is often considered for convenience by Hearing Officers in tandem with 3(1)(c) as there are substantial overlaps on the facts.  Both concern trade marks which are, essentially, descriptive of the goods/services they are being used for.  It follows therefore that the trade mark must be devoid of distinctive character for those goods/services and therefore, to a limited extent the ground of opposition based upon Section 3(1)(b) must also succeed.

 In common with s3(1)(b) of the Act objections may be overcome with evidence of acquired distinctiveness.  Such evidence may take the form of survey evidence. 

 The trade mark examiners manual discusses survey evidence at 7.11 and states that survey evidence filed in proceedings is regularly deeply flawed. 

 The basic parameters for the conduct of a survey are set out in Imperial Group v Philip Morris.  This states that if a survey is to have validity:

 The interviewees must be selected so as to present a relevant cross-section of the public

The size must be statistically significant

All surveys conducted must be fully disclosed

The totality of the answers must be presented

The questions must not be leading or concern ill-informed speculation

The exact answers must be viewable not abbreviations

Instructions to the interviewers as to how to carry out the survey must be disclosed

Coded answers for computer input must be decodable

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