Sean Hutchinson

April 2025

Background

In this case, the claimant started infringement proceedings against the defendants in respect of four registered UK trade marks at the UK’s Intellectual Property Enterprise Court (“IPEC”).

In reaching her decision, the IPEC judge (Her Honour Judge Melissa Clarke) characterised the average consumer of the goods and services in question, assessed the likelihood of the average consumer confusing the defendants’ signs with those registered as trade marks by the claimant, and ultimately held that there was a likelihood of confusion and thus infringement.

The defendants appealed this decision to the UK’s Court of Appeal, arguing that the IPEC judge had incorrectly characterised the average consumer. This, the defendants argued, meant the judge had gone on to incorrectly assess likelihood of confusion and thus reached an incorrect decision with respect to infringement.

The Average Consumer

The claimant and the defendants each operated fast food restaurants (takeaways).

Therefore, the IPEC judge held that there are two classes of average consumer of the goods and services in question, namely (i) children, young people, students and families who purchase fast food at lunch, dinner time and into the evening, and (ii) late-night party-goers who purchase fast food in the early hours of the morning while tired, hungry and, in many cases, intoxicated.

It was through the eyes of each of these two classes of average consumer that the IPEC judge reached a decision on likelihood of confusion, and hence infringement.

Decision of the Court of Appeal

On appeal, however, Lord Justice Arnold, Lady Justice Falk, and Lord Justice Newey all disagreed with the IPEC judge’s characterisation of the average consumer.

In their written decision, Lord Justice Arnold explained that they instead took the view that there was no need to consider two classes of average consumer. Rather, there was, in their opinion, only one class of average consumer to consider, namely “those who patronise such establishments”. In their reasoning, Lord Justice Arnold wrote that the same consumer may purchase food from the same takeaway at different times on different days, and thus may not fall neatly into one of the two categories identified by the IPEC judge. He also wrote that someone who purchases food from a takeaway in the early hours of the morning is not necessarily more tired or hungrier than someone who purchases food during the day – for example, someone who works night shifts might be wide awake at that time.

The Court of Appeal judges also noted that UK case law defines the notional average consumer as someone who, amongst other things, is reasonably well informed and circumspect. This in and of itself, they held, means the average consumer cannot be someone who is intoxicated.

Having characterised the average consumer in a manner they saw fit, the Court of Appeal judges then went on to re-assess likelihood of confusion and, subsequently, infringement according to their revised approach. However, due to the similarity of the signs concerned, the three judges ultimately reached the same conclusion as the IPEC judge, namely that the average consumer would likely confuse the signs and thus that the defendants had infringed the claimant’s trade marks.

Conclusions

This decision highlights the nature of the notional average consumer, which is an important concept when assessing trade mark infringement.

Specifically, this decision confirms that, where possible, the average consumer should be treated as a single class of individuals, rather than divided into categories each of which need then be considered when assessing likelihood of confusion.

This decision also confirms that, as someone who is reasonably well informed and circumspect, the average consumer is certainly not drunk!