The Image of the Consumer in European Trade Mark Law
The Image(s) of the Consumer in EU Law (Leczykiewicz and Weatherill eds) (Hart Pub. 2015)
37 Pages Posted: 6 Nov 2014 Last revised: 6 Apr 2015
Date Written: March 26, 2015
This chapter contributes to a book on the image of the consumer in EU law by exploring the role of the average consumer in European trade mark law. There is in fact a variable concept of the consumer within European trade mark law and the chapter first sets itself the task of mapping these variations. We suggest that for structural reasons European trade mark law may be compelled to work with a differentiated concept of the consumer. However these variations should be approached relationally, with an awareness of the points of difference and their basis. In particular, we suggest that most efforts by courts to identify or construct consumers and the marketplace they inhabit are blended exercises that are part-empirical and part-normative. Explicitly recognising this blend will, we believe, enable a richer debate about the role played by the consumer in European trade mark law and the evidence or considerations to which courts might have regard. It also allows us to explore whether trade mark law in Europe ought — either to achieve its own objectives or to contribute to the broader European project — to adopt an approach to the consumer that is more empirically or normatively grounded as required by the legal context and whether different national courts are (despite different methodological traditions that survive European harmonisation) converging on a common approach to the ‘trade mark consumer’.
Keywords: average consumer, acquired distinctiveness, confusion, infringement, surveys, witness collection, opinion polls, Interflora, trade mark, passing off, legal fiction
JEL Classification: K10, K11, K20
Suggested Citation: Suggested Citation