“Painting the image of the average consumer as a central part of the likelihood of confusion (LoC) analysis to address trade mark infringement disputes is essentially a norm-based judicial exercise in the European Union (EU), aiming to pursue policy or normative agendas underpinning trade mark law. Nevertheless, it by no means suggests that empirical evidence is totally irrelevant. In fact, this article contends that we may need to embrace a more empirically grounded approach to identifying the average consumer in order to avoid the risk of drifting too far away from the legal and market realities. To this end, it will start with a comprehensive analysis of the artificiality of the judicial construction of the average consumer, revealing the distance between the law and the reality …”
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Yang Xiao, A thousand faces of the average consumer: towards a more empirically grounded approach to the infringement test?, Journal of Intellectual Property Law and Practice, https://doi.org/10.1093/jiplp/jpac053. Published 25 June.
First posted 2022-06-27 10:00:32
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