4.5.1 Nature of the goods and services

It is important to consider the nature of the goods and/or services and the way that those goods and/or services will be purchased. This is a practical consideration, concerned not with “hypothetical possibilities of deception or confusion but with practical business probabilities”.²⁹ The risk of confusion must be real rather than fanciful.³⁰

The way that potential purchasers will encounter the mark should be considered. For example, are the goods selected from a shelf in a supermarket? Are they ordered over the telephone?

As the European Court of Justice has remarked:³¹

It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question. In order to assess the degree of similarity between the marks concerned, the national court must determine the degree of visual, aural or conceptual similarity between them and, where appropriate, evaluate the importance to be attached to those different elements, taking account of the category of goods or services in question and the circumstances in which they are marketed.

Expensive goods or services (such as electrical goods or cars) are bought less frequently and are more carefully selected, with consequent greater attention being paid to the trade marks used on those goods or services. In contrast, purchasers are likely to pay less attention to marks that are used on common products that are purchased in a hurry, such as bread and milk.

Footnotes

²⁹ Pioneer Hi-Bred Corn Company v Hy-Line Chicks Pty Ltd [1978] 2 NZLR 50 at 76 per Richardson J (speaking of section 16)

³⁰ Lancer Trade Mark [1987] RPC 303 at 325

³¹ Lloyd Schuhfabrik Meyer & Co. GmbH v Klijsen Handel BV [1999] ETMR 690, paragraphs 26-27