In many jurisdictions, 'relevant consumer' is one of the
most frequently used and necessary expressions when determining not
only the likelihood of confusion between trademarks but also the
notoriety level of a trademark. The word 'relevant' adds a
degree of variability to the expression and naturally, the relevant
consumer group varies depending on the goods or services
Turkish Trademark Decree Law no. 556 Pertaining to Protection of
Trademarks does not contain any expression similar to 'relevant
consumer'; instead, the concerned group of people is described
generally as 'the public'. However, in practice the 11th
Circuit Court of Appeal (which handles trademark and unfair
competition cases), evaluates what 'the public' consists of
in each and every case with its own conditions. The need to
evaluate this expression on a case-by-case basis arises because the
type, quality or character of the goods and services always changes
the concerned group of people who are familiar with the
Generally, the 11th Circuit Court of Appeal accepts that the
relevant consumer group consists of the average consumer to whom
the product and services are marketed. As a general rule, it is
accepted that an average consumer pays an average level of
attention to the differences between trademarks, and can easily
overlook minimal differences. Moreover, an average consumer might
easily link a later, similar trademark with a former, familiar
trademark which could lead to the later trademark benefiting from
the notoriety of the former trademark.
As the group of people concerned with the product and services
changes, the level of attention of the average consumer also
changes. The Court of Appeal and the Turkish Patent Institute (TPI)
expect a higher level of attention from some groups of consumers
(such as experts, specialists, doctors, etc). The attention levels
of these special groups are generally not the same as that of a
group concerned with a consumer item. Considering the precedent
cases, it is possible to say that the price, quality, nature, or
availability of the goods and services change the courts' point
of view in determining the relevant consumer group and its level of
Below are examples of some relevant consumer groups and their
level of attention for specific goods or services:
In a case where two trademarks were used on alcoholic
beverages, the court determined the relevant consumer to be a
"general adult consumer who is capable of shopping by
In a case where two trademarks were used on personal care
products (such as body moisturisers), the court described the
relevant consumer as follows: "the relevant consumers are
buyers who are not experts in the market, have limited or average
information about the product, and do not pay much attention to the
product that they are purchasing".
In a case where two trademarks were used on goods within the
scope of classes 29 and 30 (especially on biscuits), the court
described the goods as high-demand products which are consumed on a
daily basis and determined that the relevant consumer is an average
consumer who can easily be confused and deceived about similar
trademarks, cannot realise the difference between the trademarks
immediately, and may end up buying a product other than the one
In a case where two trademarks covered prescription drugs and
medical products, the court determined the relevant consumer to be
"a consumer group with a high level of attention: namely,
doctors and pharmacists".
In contrast with the case above, in a case where two trademarks
also covered prescription drugs, the court held that the relevant
consumer (doctors and pharmacists) has an average level of
attention, as long as the trademarks do not contain the name of the
In another case where two trademarks covered pharmaceutical
preparations, the court determined that the trademarks contain the
drugs' active ingredient and are therefore classified as
'weak' trademarks. The court held that small changes might
be enough to overcome similarity or likelihood of confusion as the
pharmaceutical preparations are sold only with a prescription. In
other words, the court determined that the relevant consumer group
is doctors and pharmacists who pay a high level of attention to the
As stated above, the 'relevant consumer' plays an
important role in determining the likelihood of confusion between
trademarks and the well-known character of a trademark. The courts
accept the existence of likelihood of confusion when a part of the
relevant public is under risk of confusion. On the contrary, in
order to accept the well-known character of a trademark, it should
be widely known among the relevant consumer group.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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