An average consumer model in Polish case law


Anna Zakrocka

A right of protection for a trademark is granted by the Polish Patent Office after examination of whether the mark applied for is eligible for registration in Poland on relative and absolute grounds.

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.

Patent protection, PPO, consumer model