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2020 | Book

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The Average Consumer in Confusion-based Disputes in European Trademark Law and Similar Fictions

Author: Dr. Rasmus Dalgaard Laustsen

Publisher: Springer International Publishing

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

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About this book

This book contends that, with regard to the likelihood of confusion standard, European trademark law applies the average consumer incoherently and inconsistently. To test this proposal, it presents an analysis of the horizontal and vertical level of harmonization of the average consumer. The horizontal part focuses on similar fictions in areas of law adjacent to European trademark law (and in economics), and the average consumer in unfair competition law. The vertical part focuses on European trademark law, represented mainly by EU trademark law, and the trademark laws of the UK, Sweden, Denmark and Norway. The book provides readers with a better understanding of key aspects of European trademark law (the average consumer applied as part of the likelihood of confusion standard) and combines relevant law and practices with theoretical content and other related areas of law (and economics). Accordingly, it is an asset for policymakers and practitioners, as well as general readers with an interest in intellectual property law and theory.

Table of Contents

Frontmatter

The Average Consumer: A Consumer Fiction in European Trademark Law

Frontmatter
Chapter 1. Background
Abstract
The “average consumer” fiction in confusion-based disputes in European trademark law is the subject of this analysis. Until recently, this average consumer was almost overlooked in the literature, and it is not mentioned in the legislation. This book analyses the average consumer considering legal fiction theory. Further, it analyses the fictions similar to the average consumer in European trademark law (e.g. the informed user in design law and the person skilled in the art in patent law), and the average consumer under the UCPD. The analysis of the average consumer in confusion-based disputes under European trademark law covers EU law and the laws of the UK, Sweden, Denmark and Norway. This chapter provides the purpose, structure and delimitation of the analysis.
Rasmus Dalgaard Laustsen
Chapter 2. Methodology
Abstract
This chapter sets out the methodology for the analysis and for selecting the relevant legal sources.
The methodology of this book consists of methods derived from legal science with the legal dogmatic method as the core method. Adding to this, are aspects of comparative legal methods. Coherence is used as a measure for deciding if European trademark law is in line with its policy underpinning, where consistency is used to decide if decisions with the same operative facts have the same results.
Rasmus Dalgaard Laustsen
Chapter 3. Legal Sources
Abstract
This chapter lays out the relevant legal sources. First, this means a specification of the legislation and the courts, whose decisions are included in the analysis. In this process, the different legal levels of this book are accounted for, i.e. mainly the EU and the national levels, but also the international level. Hence, this chapter lays out the primary and secondary EU law followed by national trademark laws and a listing of the selected national courts. Finally, the international aspects of European trademark law are set out. The legal method of this book necessitates an account of not only the positive legal sources as they emerge in case law, but also sources relevant to interpreting European trademark law, such as preparatory works.
Rasmus Dalgaard Laustsen
Chapter 4. The Dynamics of the European Trademark Law
Abstract
Due to Europeanisation of trademark law, the dynamic development of this area of law and the vaguely formulated EU trademark legislation, the Court of Justice is a key player in the EU law making process and development of the average consumer.
First, this chapter analyses harmonisation through EU trademark legislation and through the UCPD (adjacent to European trademark law). Second, the role of the CJEU as a lawmaker, e.g. through preliminary and appellate decisions of the Court of Justice, the interpretation by the Court of Justice of legal sources and the role of the opinions of the Advocates General.
This chapter concludes that part of the uncertainty in the decisions of the Court of Justice is their lacking clear ratios decidendi, the decisions being shortly reasoned and leaving out dissenting judgements. Further, that the Court of Justice opens up for normative preferences through its means of interpretation. Finally, that opinions of Advocates General contribute to developing the average consumer and European trademark law and policy.
Rasmus Dalgaard Laustsen

Horizontal Analysis: One Among Other Fictions and the UCPD Consumer Models

Frontmatter
Chapter 5. The Average Consumer as a Legal Fiction and Beyond
Abstract
This chapter elaborates on why the average consumer based on legal theory is a legal fiction and not a legal standard or legal concept. Legal theory is itself ambiguous, and the terminology used for denoting the average consumer is incoherent with underpinning legal theory and inconsistent.
The average consumer should not be seen as either fictional or factual (descriptive), but as a model containing both normative and factual elements. The more normative the average consumer is, the more power is allocated to the appellate courts and the Court of Justice as the ultimate interpreter of EU trademark law. If the average consumer is more descriptive, more power is left for the courts adjudicating disputes on their operative facts, i.e. the General Court and national courts within their areas of competence.
That the average consumer is not found in real life is not as such a decisive finding. The focus should be to create a “workable” fiction in law and that coherence and consistency in law could be seen as the main indicators of “workability.”
Rasmus Dalgaard Laustsen
Chapter 6. The Average Consumer and Its More or Less Distant Cousins
Abstract
Legal fictions are also found in EU design law and European patent law operating respectively, “the informed user” and “the person skilled in the art.” Further, outside of intellectual property law, in tort law, “the reasonable person” is used to decide the standard of care. Outside of law, in economics, a fiction (or a model) is the “rational actor model.” This chapter compares the average consumer in European trademark law with these other fictions.
This chapter concludes that the intellectual property law legal fictions have similar functions in their respective legal environments, i.e. they are calibration mechanisms for the senior and junior owners in registration and infringement.
As for the comparison with the reasonable person, both are fictions, but the reasonable person is closer intertwined with the reasonableness standard than the average consumer with the likelihood of confusion standard. Further, that the reasonable person to a further extent is based on objective circumstances.
It makes sense to talk about the average consumer metaphorically as the “not so distant cousin” of the rational actor model. But, the generalisations inherent in the average consumer are not allowed, as suggested by some, because of its resemblance with the rational actor.
Rasmus Dalgaard Laustsen
Chapter 7. The UCPD and Trademark Average Consumers: Two of a Kind?
Abstract
This chapter compares the UCPD average consumer with the European trademark law average consumer. Both fictions have the same characteristics, and they discount the least and most attentive consumers. With the reference by the UCPD to the average consumer though, the EU legislature has sent a significant message to the national legislatures and judiciaries to be careful when contextualising the average consumer. This is also seen by UCPD’s reference to the “social, cultural and linguistic factors, as interpreted by the Court of Justice.”
The UCPD’s reference to other consumer models, i.e. the “confident consumer,” the “vulnerable consumers” and an “average member” of “a particular group of consumers,” only to some extent manifests in substantial differences from the European trademark law average consumer. For the vulnerable consumers though, represented by children, the UCPD more narrowly protects consumers, including children, where European trademark law protects senior and junior trademark owners.
Rasmus Dalgaard Laustsen

Vertical Analysis: The Judicial Background and European Trademark Law

Frontmatter
Chapter 8. The Early Beginnings of the Average Consumer Pre Sabel
Abstract
Since Cassis de Dijon from 1979, the Court of Justice issued many decisions dealing with consumer perception vis-à-vis free movement of goods, and how well consumers can look after themselves in the marketplace. These decisions culminated with the Court of Justice setting out the “modern” average consumer in European trademark law in Sabel in 1997. These early decisions show the inconsistent development of the average consumer and its nature relevant to the analysis in this book.
Before Sabel, particularly the Court of Justice used the term average consumer inconsistently, partly caused by the different language versions of its decisions. This chapter contests the finding by some that the Court of Justice first referred to the average consumer in Germany v. Commission 1992 or other decisions, since the first reference to the average consumer was found in Van Bennekom from 1983. On an individual level, Mancini and Gulmann could have significantly impacted the development of the “modern” average consumer due to their role as Advocates General and judges in some of the earlier decisions and as judges in Sabel and Lloyd.
Rasmus Dalgaard Laustsen
Chapter 9. Likelihood of Confusion: Legislative Harmonisation?
Abstract
This chapter analyses the legislative likelihood of confusion standard. Likelihood of confusion standards were found, before EU trademark legislation, in the UK, the Nordic countries and in the Paris Convention. These national standards impacted the international treaties, but also impact today’s preliminary rulings of the Court of Justice.
The TM Directive clarified and added uncertainty to the likelihood of confusion standard, e.g. referring to the “part of the public” and laying the ground for the “global appreciation test.”
The national legislative likelihood of confusion standards differ somewhat from that of the TM Directive, but there is a high degree of legislative harmonisation between the analysed national jurisdictions. Some essential gaps are inherently left though by the EU legislature for the European judiciaries when they apply the likelihood of confusion standard, including what role “part of the public” must play. These gaps have not been narrowed by the national legislatures.
Rasmus Dalgaard Laustsen
Chapter 10. The Average Consumer in a “Global” Perspective
Abstract
Starting from Sabel, this chapter analyses how the Court of Justice developed “the global appreciation test” and as part of this applied the relevant public. This chapter concludes that the “trinity decisions,” Sabel, Gut Springenheide and Lloyd, are fundamentals of the average consumer, with Sabel and Lloyd manifesting the average consumer in European trademark law as part of the global appreciation test. Especially, Sabel and Lloyd form the foundation of the average consumer in General Court case law, although rarely explicitly.
Based on national case law after Sabel, this chapter concludes that there is harmonisation between the different national jurisdictions, but that the level of the harmonisation is murky. First, since the judicial application of the average consumer as part of the global appreciation test often occurs in the UK, but due to less explicit ratios decidendi occurs more rarely in the Nordic countries, particularly in Denmark. Second, the UK judiciaries, in contrast with the Nordic judiciaries, clearly apply the likelihood of confusion standard narrowly as set out by the Court of Justice.
As for the relevant public as such, the consistency between the EU and the national judiciaries is also murky. The UK judiciaries at one end clearly apply the EU relevant public, where at the other end, the Danish judiciaries rarely apply the relevant public. Sweden and Norway fall between the UK and Denmark.
Rasmus Dalgaard Laustsen
Chapter 11. Contextualisation of the Average Consumer
Abstract
This chapter analyses how European judiciaries in likelihood of confusion disputes as a combination of law and fact contextualise the average consumer to varying market realities. The Court of Justice considers contextualisation to be part of the factual assessment done by the General Court and the national courts, but the court through the average consumer provides a steer for this factual assessment.
The average consumer set out by the Court of Justice serves the important purpose of discounting from the average consumer the highly inattentive and the highly attentive part of the public. The contextualisation of the average consumer is analysed within different product markets (everyday consumer goods and specialised goods) and market places (offline and on the internet).
For General Court case law, this chapter concludes that for everyday consumer goods, the relevant public is most often the average consumer with an average level of attention, and in certain instances with a lower or higher level of attention. Further, that the relevant public may be specialised consumers or professionals with a high level of attention. This chapter concludes that the General Court uses inconsistent terminology for describing and applying the relevant public and its level of attention for comparable products. The UK judiciaries are more outspoken about contextualising the average consumer in line with the EU law approach, where this chapter concludes that generally, the Nordic judiciaries rarely explicitly contextualise the average consumer.
Although the Court of Justice has introduced the “average internet user,” this average consumer is, based on current case law, substantially identical with (offline) the average consumer.
This chapter concludes that the Court of Justice through an “empirical rule” contextualises the average consumer itself by giving its view on how to assess the distinctiveness of certain untraditional marks based on an assumed perception of the average consumer, i.e. not leaving the contextualisation for the General Court and national courts.
Rasmus Dalgaard Laustsen

Wrapping Up

Frontmatter
Chapter 12. Putting the Average Consumer into Perspective
Abstract
This chapter concludes on the main findings of the book. Further, this chapter suggests that the Court of Justice plays a more active role in shaping the average consumer by adjusting the law and policy underpinning the average consumer to apply the average consumer more consistently and coherently. As for the contextualisation, the General Court and national courts should clarify the inconsistencies, and particularly, the Nordic judiciaries should make the role of the average consumer in confusion-based disputes more explicit.
This chapter claims that the inconsistencies of the average consumer in European trademark law through a feedback loop may dynamically impact the state of the law and the market by impacting the relevant stakeholders. The stakeholders include the Court of Justice, General Court, national courts, trademark owners and their competitors.
A way forward to clarify the policy underlying the average consumer, is for the Advocates General to include more explicit trademark policy into their opinions that, if the opinions are confirmed by the Court of Justice, will create a more solid policy foundation for the court’s decisions. In this context, the economic function of trademarks as lowering consumer search costs could be considered to create a better policy steer guiding the contextualisation of the average consumer.
Rasmus Dalgaard Laustsen
Backmatter
Metadata
Title
The Average Consumer in Confusion-based Disputes in European Trademark Law and Similar Fictions
Author
Dr. Rasmus Dalgaard Laustsen
Copyright Year
2020
Electronic ISBN
978-3-030-26350-8
Print ISBN
978-3-030-26349-2
DOI
https://doi.org/10.1007/978-3-030-26350-8