An average consumer model in Polish case law

Among other items, the PPO examines whether a new application is not similar to another mark registered, or applied for registration with an earlier priority date, on behalf of another party for goods or services which are identical, or similar, to the extent that the use of the later mark would evoke the risk of confusion among consumers.

Similarity between trademarks shall be assessed from the point of view of an average consumer. Thus, in order to determine whether there is a risk of confusion of goods under the marks at issue, it is essential to determine a model of an average consumer of the relevant goods or services.

Pursuant to European Union case law, the average consumer of the category of products concerned is deemed to be reasonably well-informed and reasonably observant and circumspect, and the average consumer’s level of attention is likely to vary according to the category of goods or services in question (decision of the Court of Justice of the EU June 22, 1999, case file No. C-342/97 Lloyd/Klijsen, as well as the decision of July 16, 1998, case file No. C-210/96 Gut Springenheide and Tusky). The above principle is also applied by Polish authorities in analogous cases.

In a judgment of December 1, 2011 (case file No. VI SA/Wa 1263/11) regarding assessment of similarity between the trademarks destined for clothing in general (Class 25), the District Administrative Court in Warsaw found that giving consumers the right to return purchased goods to the seller, or to exchange them freely for other goods at the place of purchase, undoubtedly lowers the consumers’ level of attention and makes them less observant to the commercial markings of products.

An assumption can therefore be made that goods such as clothing belong to the category of ordinary products for mass consumption. This leads to a conclusion that when buying clothes, consumers selecting goods and assessing trademarks have a low level of attention, which increases the risk of confusion.

“PATIENTS SHALL ALSO BE REGARDED AS CONSUMERS WHOSE LEVEL OF ATTENTION IS HIGHER THAN AVERAGE.”

However, in another case regarding goods from Class 25 (a judgment of the District Administrative Court in Warsaw of December 6, 2011, case file No. VI SA/Wa 1263/11), it was found that products such as clothing, footwear or headgear are not so-called ‘impulse buys’, and that their purchase is usually more deliberate and follows, at least, short analysis. Thus, the consumers of this category of products are deemed to have a higher than average level of attention.

Cosmetics is another category of products that has its own average consumer model. According to Polish case law, although cosmetics are bought by an unlimited number of consumers, a model consumer will have a higher than average level of attention.

Cosmetics, like clothing, footwear or headgear, are not impulse buys which are purchased hastily without at least a moment of attention. This is more so because of their usually high price, especially perfumes, the purchase of which is deliberate (judgment of the District Administrative Court in Warsaw as of January 17, 2012, case file No. VI SA/Wa 2051/11).

As regards pharmaceutical products, Polish case law divides consumers into patients and professionals. The latter belong to the group of highly attentive consumers. Patients, like professionals, are aware that pharmaceutical products have a serious impact on their health, so they shall also be regarded as consumers whose level of attention is higher than average (judgment of the District Administrative Court in Warsaw of April 20, 2011, case file No. VI SA/Wa 2623/10).

When it comes to technical products, it is assumed that the average consumer’s level of attention is very high, regardless of whether they are professionals in a given field or individual consumers without technical background who buy the products occasionally (judgment of the District Administrative Court in Warsaw, December 21, 2011, case file No. VI SA/Wa 1372/11).

For consumers of services, Polish case law provides for a view that their level of attention is always higher than average, irrespective of whether the services are highly specialised, or are directed to a broad public, such as restaurants.

A consumer looking for a place to eat out is unlikely to act impulsively, so there is no reason to agree with a view that an average consumer of food-providing services shall be placed in the category of unreasonable, inattentive and misinformed consumers, who are prone to be confused easily (judgment of the District Administrative Court in Warsaw, December 27, 2011, case file No. VI SA/Wa 2041/11).

To conclude, although doctrine and case law provide for a model of an average consumer of all categories of goods or services, every new case involving evaluation of the risk of misleading consumers is examined individually by the relevant official body, focusing on all essential aspects in the case.