The ‘average consumer’ may not exist in the real world but, as a legal construct, is an all-pervading presence in many trade mark disputes. That was certainly so in an infringement case concerning two manufacturers of alcoholic beverages which each named products after the same bird of prey.

A group of companies marketed their product under the aegis of UK and EU trade marks that combined the name of the bird with an adjective. They brought proceedings after another group launched a beverage in the same class which also featured the bird’s name in its branding.

Ruling on the case, the High Court noted that it was required objectively to assess the likelihood of public confusion between the two products through the eyes of the average consumer. The consumer was deemed to be reasonably well-informed and circumspect in their buying habits. Given the greater than usual prevalence of brand loyalty in the relevant market, however, the Court attributed to them a somewhat higher degree of attentiveness than in other cases.

In attempting to replicate the fleeting experience that the average consumer might have in deciding whether to buy one product or another, the Court found that there was a degree of similarity between the two brands, but that it was not overwhelming. The name of the defendants’ product was likely to call the claimants’ product to mind, but there was little risk that a significant proportion of the buying public would be confused into thinking that the two products were one and the same.

However, the Court found it likely that the average consumer would be confused into mistakenly thinking that the two brands were commercially connected and that the products came from economically linked manufacturers. The existence of related brands using similar names was well-known to the public.

The Court ruled that two companies within the defendants’ group had infringed the UK and EU trade marks registered by one of the companies in the claimants’ group. The decision entitled the claimants to seek damages or an account of profits made from sales of the infringing product. Another trade mark which had been registered with a view to protecting the defendants’ brand was declared invalid.