When considering whether two trade marks are similar and are likely to be confused, trade mark registries and courts compare marks from the perspective of the "average consumer" of the relevant goods or services for which the marks have been registered or applied for.
The "average consumer" is deemed to be reasonably well informed and reasonably circumspect and observant, but rarely has the chance to make direct comparisons between marks and must instead rely upon imperfect recollection of the relevant marks. Furthermore, the "average consumer's" level of attention varies according to the category of goods or services in question.
With regard to general consumer goods, the "average consumer" is considered to be as described above. However, when considering the matter with regard to specialists, high end or more expensive goods, the "average consumer" of such goods is considered to have a higher level of attention, and is therefore less likely to confuse marks which may otherwise be considered to be similar.
The question of the "average consumer" was discussed in a recent case (Speciality Drinks v EUIPO – William Grant T-250/15) in the European Union's General Court.
Speciality Drinks applied for the mark CLAN as a European Union Trade Mark (EUTM) in respect of inter alia, whisky. William Grant & Sons, which is the owner of the earlier Trade Mark registration for Clan McGregor, successfully opposed the application, with the mark applied for considered to be confusingly similar to William Grant & Sons' earlier mark due to the common element of the word CLAN. Speciality Drinks unsuccessfully appealed the decision, followed by a further appeal to the General Court.
Speciality Drinks put forward arguments that the assessment as to the similarity of the marks should not be made from the perspective of the "average consumer", with whisky being distinct from other alcoholic beverage, and its consumers being more akin to "connoisseurs". As such, Speciality Drinks argued that consumers of whisky have a far higher degree of attention and would not confuse its mark applied for, CLAN, with the earlier registered mark, namely Clan McGregor.
The General Court dismissed Speciality Drinks' arguments, stating that whisky is a mass market good and as such, the relevant consumer is the "average consumer", who has an average level of attention.
The Court did go on to say that the "connoisseur" tag, and therefore the higher level of attention. may potentially apply, but only to a limited number of whisky consumers. This in itself could not displace the general principle that alcoholic drinks are mass market goods, meaning that the relevant consumer is the "average consumer" of whisky, who has the average level of attention.
The Court continued that the argument of whisky consumers having a higher degree of attention would be stronger if it could be shown on the facts that the relevant product appealed exclusively to a specific category of knowledgeable consumers, perhaps in relation to collectors or consumers of particularly rare or expensive whisky, where a higher level of attention may be attributed. The Court stated that establishing the aforesaid would be a very high evidentiary burden to meet.
Speciality Drinks failed to meet this burden and the appeal was dismissed.
The decision of the Court suggests that it would be difficult to attribute a higher level of attention to particular goods, where such goods fall within a general category such as a mass market consumer good, unless there is evidence to establish that the goods in question are directed at a particular consumer who has a high level of attention, as opposed to the general public or the "average consumer".
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