How average is the average consumer? A case comment on Floyd LJ's findings in the recent Court of Appeal judgment in The London Taxi Cab Case - Part II
A follow up discussion (see previous blog here on inherent distinctiveness) on the recent Court of Appeal judgment in The London Taxi Corporation Ltd (t/a the London Taxi Company) v Frazer-Nash Research Ltd & Anor [2017] EWCA Civ 1729: Part II – average consumer
Defining the average consumer can be awkward for any claimant suing for trade mark infringement based on a likelihood of confusion while also defending a counterclaim based on invalidity for lack of distinctiveness. This is because for many goods, the general public end-user is likely to have a lower level of attention than the narrow group of specialists who operate within the supply chain of that product. The lower level of attention of end-users will generally mean a greater likelihood of confusion among that group. However, a defined group of specialist consumers, with a higher level of attention, will be better placed to appreciate the distinctive character of a mark as an indication of origin, making it easier to argue for validity. This was particularly well-exemplified in the London Taxi Cab case for which the Court of Appeal recently handed down judgment.
In the London Taxi case, the battleground for the average consumer was marked on one side as "purchasers of taxis" (exercising high levels of attention when making an expensive and employment-based decision) and on the other side as the average taxi hirer, i.e. the general public looking simply to move from A to B, and often in a hurry. It is a settled principle of EU/UK trade mark law that where there is more than one average consumer (with different levels of attention), it is the perception of those with the lower level of attention that is relevant in determining likelihood of confusion.
At first instance, Arnold J held that "members of the public who hire taxis are consumers of taxi services, and not of taxis". This finding appears to have given wings to a more elaborate, principle-based question that was considered by the Court of Appeal, namely: can a member of the public who hires a taxi be said to be a relevant consumer of the goods in respect of which the trade mark is registered where such a person differs from an outright purchaser of the goods (i.e. a taxi purchaser) because they do not take complete possession of the goods?
In considering this question, the Court of Appeal was directed to a number of cases that involved various intermediary consumers, including the Backaldrin Osterrich The Kornspitz Company GmbH v Pfahnl Backmittel Gmbh (regarding the mark KORNSPITZ registered for various foodstuffs including bakery products) and Schutz (UK) Limited and another v Delta Containers Limited and another concerning marks registered for intermediate bulk containers (IBCs). Each case was distinguishable from that of London Taxi Cab, and having explored the "complete possession" theory in some detail and in the absence of any exactly on point authority, Floyd LJ overturned Arnold J's findings on this point. He held: "..the term average consumer includes any class of consumer to whom the guarantee of origin is directed and who would be likely to rely on it, for example in making a decision to buy or use the goods. Against that background, I would not have thought it mattered whether a user was someone who took complete possession of the goods, or someone who merely hired the goods under the overall control of a third party."
Whilst this was a victory of sorts for the London Taxi Company, it was short-lived as when assessing distinctiveness, including that which had been acquired through use, the Court of Appeal concluded that consumers (necessarily including the general public) would not perceive the shape (as depicted by the relevant marks) as an indication that the taxis emanate from one manufacturer. Whilst Floyd J suggested that his findings would be the same even if, contrary to London Taxi Cab's case, the average consumer was restricted to taxi purchasers only, it leaves open to speculation whether Arnold J would have concluded the same, particularly if London Taxi Company had not failed to argue in the alternative that even if the mark was not distinctive to taxi hirers, it was distinctive to purchasers. We will have to wait for more cases to test that theory further.