4.5.2 The purchasers or the relevant market

The nature of the potential purchaser should be taken into account. It is the ultimate purchasers who must be considered, not the retailers or sales representatives who may be more familiar with the products.

The potential purchaser will vary according to the nature of the product. If the goods are everyday items, such as groceries, the relevant market will be the general public. If the goods are of a specialist or technical nature, such as surgical implements, the relevant market will be limited to those in the trade and/or those with technical knowledge or expertise.

A trade mark should not be barred from registration because “unusually stupid people, fools or idiots would be deceived”³². Historically the “ordinary person” test has been applied, namely, the potential purchaser has been assumed to be a person using ordinary care and intelligence who has an ordinary recollection of the mark.³³

More recently the European Court of Justice has held that it is “the perception of marks in the mind of the average consumer of the type of goods or services in question”³⁴ that is decisive. The “average consumer” test is therefore the test that should now be applied. It should be noted, “the average consumer of the category of products concerned is deemed to be reasonably well-informed and reasonably observant and circumspect”.³⁵

The risk of confusion is likely to be increased if the goods or services are purchased by children, impulse purchasers,³⁶ or people in a hurry.³⁷

Footnotes

³² Crook’s Trade Mark (1914) 31 RPC 79 at 85

³³ Don v Burley (1916) 22 CLR 136 at 140; see discussion in Shanahan, Australian Law of Trade Marks and Passing Off, 2nd edition, 1990, at page 183

³⁴ Sabel BV v Puma AG, Rudolf Dassler Sport [1998] RPC 199 at 224

³⁵ Lloyd Schuhfabrik Meyer & Co. GmbH v Klijsen Handel BV [1999] ETMR 690, paragraph 26; Bach and Bach Flower Remedies Trade Marks [2000] RPC 513 at 534

³⁶ Golden Crumpet Co. Australasia v Hardings Manufacturers Pty Ltd (1987) 8 IPR 147 at 155

³⁷ Montgomery v Thompson (1891) 8 RPC 361 at 368 (H.L.)