Prior to the leading case of Ginebra San Miguel Inc. v. Tanduay Distillers Inc.,1 Philippine case law as well as judicial and administrative practice had not been particularly receptive to survey evidence. The evidence was characterized as self-serving, unreliable, and misleading. A key objection was that survey evidence was hearsay because it contained the out-of-court statements of survey respondents who could not be cross-examined by the adverse party. In Ginebra San Miguel, a case involving trademark infringement and unfair competition, the Court brushed aside the hearsay objection and held that survey evidence is admissible under the doctrine of independently relevant statements.
Ginebra San Miguel Inc. v. Tanduay Distillers Inc.
Ginebra San Miguel Inc. (GSMI) is the distiller of the well-known gin Ginebra San Miguel. GSMI brought a suit for trademark infringement and unfair competition against Tanduay Distillers Inc. (TDI) for the latter’s use of “Ginebra” in its Ginebra Kapitan gin brand. GSMI sought to prove that the consuming public associated the word “Ginebra” with GSMI and that TDI’s use of “Ginebra” in its Ginebra Kapitan gin confused and deceived consumers into believing that Ginebra Kapitan was manufactured or distilled by GSMI.
A crucial item of evidence offered by GSMI was a consumer survey commissioned by GSMI and conducted by a market and consumer research agency. The survey showed that an overwhelming majority of the consuming public (1) associated “Ginebra” with GSMI and (2) believed that Ginebra Kapitan was manufactured or distilled by GSMI. The president of the agency, who was also an expert on analyzing and interpreting survey results, testified to identify the survey report and that the survey was conducted in a scientific and methodical manner. A critical issue was whether the survey evidence was inadmissible for being hearsay.
In a landmark ruling, the Court held that the survey evidence was not excluded by the hearsay rule because it contained the respondents’ independently relevant statements. An independently relevant statement is an out-of-court statement which is relevant for something else other than its truth. The Court explained that the survey evidence was offered to prove what the respondents thought or believed, not the truth of what they thought or believed. In effect, the Court treated the survey evidence as non-hearsay. The Court also referenced Section 9 of the 2020 Revised Rules of Procedure for Intellectual Property Rights Cases which allows market surveys to be presented in court to prove the primary significance of the mark to the public and/or the likelihood of confusion.
The Court mentioned that in the United States, the prevailing view is that survey evidence is hearsay but admissible under the state-of-mind exception in Rule 803(3) of the Federal Rules of Evidence. Since there is no state-of-mind exception under the Rules of Evidence, the Court adopted the approach of admitting survey evidence under the doctrine of independently relevant statements.2
Zippo Guidelines
The Court, drawing guidance from the U.S. case of Zippo Mfg. Co. v. Rogers Imports., Inc.,3 cited two bases for the admissibility of survey evidence: necessity and trustworthiness. Necessity arises from the impracticality of presenting testimonial evidence from the relevant segment of the public. Trustworthiness would be assured by showing that the survey was scientifically and methodically conducted using generally accepted survey techniques.4
Double Hearsay
Although not discussed in Ginebra San Miguel, a survey report involves double hearsay since the survey report itself is an out-of-court statement. The hearsay character of the report becomes more pronounced if the interviewers are not presented in court.5 The hearsay objection may be overcome by invoking the business records exception. The survey report is a record of the regularly conducted business activity of the survey company.6
Survey Evidence Reinvigorated
The Ginebra San Miguel ruling reinvigorates the use of survey evidence. Ginebra San Miguel in fact states that not only is survey evidence admissible, but it is particularly helpful in trademark infringement and unfair competition cases. Another use of survey evidence would be in cases involving the Philippine Competition Act, such as to determine the effects of an act alleged to be uncompetitive on the market players.
Survey and polls properly and scientifically undertaken, even if used to prove facts asserted in the statements, e.g. cross-shopping and product substitution in antitrust cases, are sufficiently reliable and may be admitted under the residual exception to the hearsay rule.7
-oOo-
- G.R. No. 196372, 9 August 2022, e.b., Gesmundo, C.J. ↩︎
- Another approach that may be taken under Philippine evidentiary law is to admit the survey evidence under the residual exception to the hearsay rule (see Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 522-523 [10th Cir. 1987]). Ginebra San Miguel‘s application of the necessity and trustworthiness requirements is in fact consistent with the residual exception. ↩︎
- 216 F. Supp. 670 (S.D.N.Y. 1963). ↩︎
- See Lacoste S.A. v. Crocodile International Pte Ltd., G.R. No. 223270, 6 November 2023, Kho, Jr., J., where the Court held the requisite of trustworthiness was not established because, inter alia, the population size from which the sample was taken was not identified. ↩︎
- RICHARD O. LEMPERT & STEPHEN A. SALTZBURG, A MODERN APPROACH TO EVIDENCE 364-365 (2d ed., 1982; 3rd reprint 1988). ↩︎
- Section 45, Rule 130, Rules of Evidence; Shosana Pty Ltd and Sue Smith v. 10th Cantanae Pty Ltd, 79 Australian L.R. 279 (1988). ↩︎
- MUELLER, KIRKPATRICK, & RICHTER, EVIDENCE 1159 (6th ed.); citing Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 522-523 (10th Cir. 1987). ↩︎
