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
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
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
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
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
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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