The average consumer is not a fool, but trade mark law is all about mistakes and unwitting assumptions they might be expected to make. The Court of Appeal made that point in a case concerning competing brands of bourbon.
A supplier of luxury bourbon held UK and EU trade marks to protect its exclusive use of its brand name, which prominently featured the word 'eagle'. It launched infringement proceedings against a trade rival that marketed its bourbon under a name that included the same word.
Following a trial, a judge found that there was a significant, but not overwhelming, similarity between the branding of the two products. Given that average consumers of top-quality bourbon could be taken to be more discerning than most, there was little likelihood that a significant proportion of them would be directly confused into thinking that the products were one and the same.
Upholding the supplier's claim, however, the judge found that the similarities in packaging created a risk of indirect confusion amongst bourbon buyers. There was a danger that some consumers might mistakenly believe that both products came from the same source or that their producers were economically linked.
In rejecting the rival's challenge to that outcome, the Court noted that trade mark law is all about discerning the probability or otherwise of consumers making mistaken assumptions. The judge correctly proceeded on the basis that average bourbon buyers would not necessarily stop to check labels to see whether or not the competing products were linked to a single supplier.
The judge did not descend into speculation in detecting a risk that consumers might assume that the brands were economically related and that the supplier's bourbon was a special version of the rival's product. The rival's argument that the supplier's bourbon was too niche a product to give rise to a likelihood of consumer confusion also fell on fallow ground.