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4.5 Trade channels of the goods and services
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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
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.)
