Shortly after its delivery, the decision of Kos J in the Scotch Whisky Association v The Mill Liquor Save was applied by Ellis J in Merial v Virbac S A. In that decision Ellis J upheld a decision of the Assistant Commissioner of Trade Marks refusing to admit market survey evidence put forward in reply by the opponent directed at establishing a likelihood of confusion between the marks in question. The survey evidence in question was prepared after the filing of the applicant’s evidence in chief. 

In refusing to admit the evidence Ellis J quoted at length from Scotch Whisky, and wholly affirmed the approach taken by Kos J. She noted that to allow evidence in reply that was in reality evidence in support of the notice of opposition “creates an opportunity for opponents in trade mark matters to “game” the system, by keeping their forensic powder dry until after an applicant has fired its best (and only) evidential shot. It would […] be fundamentally unfair to allow an opponent to have such a new and substantive “last word,” without the applicant having an opportunity to answer it.”