A thousand faces of the average consumer: towards a more empirically grounded approach to the infringement test?

Abstract

Painting the image of the average consumer as a central part of the likelihood of confusion (LoC) analysis to address trade mark infringement disputes is essentially a norm-based judicial exercise in the European Union (EU), aiming to pursue policy or normative agendas underpinning trade mark law. Nevertheless, it by no means suggests that empirical evidence is totally irrelevant. In fact, this article contends that we may need to embrace a more empirically grounded approach to identifying the average consumer in order to avoid the risk of drifting too far away from the legal and market realities. To this end, it will start with a comprehensive analysis of the artificiality of the judicial construction of the average consumer, revealing the distance between the law and the reality (Section II). Then it will look beyond the established case law and go on to identify three key elements which lead the average consumer to where it is now, that is, as a legal construct with little regard for empirical evidence (Section III). These arguments will be examined in detail, and particular focus will be placed on two types of empirical tools which, in the view of this article, rather than negating the average consumer as a norm-based concept, serve to flesh out this legal fiction in a more context-specific manner (Section IV).