Abstract
This chapter elaborates on why the average consumer based on legal theory is a legal fiction and not a legal standard or legal concept. Legal theory is itself ambiguous, and the terminology used for denoting the average consumer is incoherent with underpinning legal theory and inconsistent.
The average consumer should not be seen as either fictional or factual (descriptive), but as a model containing both normative and factual elements. The more normative the average consumer is, the more power is allocated to the appellate courts and the Court of Justice as the ultimate interpreter of EU trademark law. If the average consumer is more descriptive, more power is left for the courts adjudicating disputes on their operative facts, i.e. the General Court and national courts within their areas of competence.
That the average consumer is not found in real life is not as such a decisive finding. The focus should be to create a “workable” fiction in law and that coherence and consistency in law could be seen as the main indicators of “workability.”
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Notes
- 1.
- 2.
This is probably rightfully so since the format of journal articles does not allow the combining of an in-depth contemporary analysis of the average consumer with an analysis of legal theory.
- 3.
See Chap. 4.
- 4.
In relation to trademark infringement, Burrell and Handler have argued that “(…) the average consumer by reference to whom infringement is judged is a legal fiction and that this hypothetical person does compare the mark as registered with the defendant’s use.” Burrell, Robert, and Handler, Michael, ‘Making Sense of Trade Mark Law’, Intellectual Property Quarterly, no. 4, (2003), pp. 388, p. 406. Analysing the average consumer in the realm of the UCPD, Sibony referring to “homo oeconomicus” in economics has stated that “EU consumer law still largely relies on the fiction that consumers are ʻreasonably well-informed and reasonably observant and circumspect’.” In addition, Sibony has claimed that although the average consumer “is an expression of fiction, this “average consumer” exists in reality, within all of us.” Sibony, Anne-Lise, ‘Can EU Consumer Law Benefit from Behavioural Insights? An Analysis of the Unfair Practices Directive’, in Mathis, Klaus ed., European Perspectives on Behavioural Law and Economics. Foundations and Applications (1st edn, Springer, 2015), 71, p. 72. Dinwoodie has stated that the US cousin of the European average consumer, “the ordinarily prudent purchaser,” elsewhere also denoted the “reasonable consumer” and sometimes just the “reasonable person,” is “in large part a legal fiction that implements a vision of the degree of consumer protection regulation that Congress and the courts think appropriate without rendering commerce inefficient.” Dinwoodie, Graeme B., ‘What Linguistics can do for Trademark Law’, in Bently, Lionel, Davis, Jennifer and Ginsburg, Jane C. eds., Trade Marks and Brands: An Interdisciplinary Critique (1st edn, Cambridge University Press, 2008), 140, p. 148. Indicating a critique of the US equivalent of the average consumer, Gallagher and Goodstein have even held that it is not only a legal fiction but a “science fiction.” Gallagher, William E., and Goodstein, Ronald C., ‘Inference Versus Speculation in Trademark Infringement Litigation: Abandoning the Fiction of the Vulcan Mind Meld’, Trademark Reporter, vol. 94/no. 6, (2004), pp. 1229. The authors build on an analogy to the Star Treck character the Vulcan who by way of touching a person’s head with his fingertips can identify and undergo that person’s thoughts as if they were his own. In that light the authors call the US equivalent of the average consumer a “science fiction” (all italics in this footnote are added).
- 5.
Interflora v. Marks & Spencer, [2012] EWCA Civ 1501, paras 44 and 73. This finding was upheld by the UK Court of Appeal in Interflora v. Marks & Spencer, [2014] EWCA Civ 1403, para 113, and also by the UK High Court in Hearst v. A.V.E.L.A., [2014] EWHC 439 (Ch), para 60 and Enterprise v. Europcar, [2015] EWHC 17 (Ch), para 131. Davis, Jennifer, ‘Revisiting the Average Consumer: An Uncertain Presence in European Trade Mark’, Intellectual Property Quarterly, no. 1, (2015), pp. 15, p. 19. Analysing the average consumer in the UCPD, Micklitz has in similar terms called the average consumer “ECJ’s construction.” Micklitz, Hans-W., ‘Unfair Commercial Practices and Misleading Advertising’, in Micklitz, Hans-W, Reich, Norbert and Rott, Peter eds., Understanding EU Consumer Law (1st edn, Intersentia, 2009), 61, p. 87 and Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 94.
- 6.
Heymann, in dealing with the US counterpart of the average consumer, has used the term “judicial construct.” Heymann, Laura A., ‘The Reasonable Person in Trademark Law’, Saint Louis University Law Journal, vol. 52/no. 3, (2008), pp. 781, p. 786, including footnote 26 of the text, where Heymann refers to a draft of Dinwoodie’s article where Dinwoodie has called the average consumer a legal fiction. Dinwoodie, Graeme B., ‘What Linguistics can do for Trademark Law’, in Bently, Lionel, Davis, Jennifer and Ginsburg, Jane C. eds., Trade Marks and Brands: An Interdisciplinary Critique (1st edn, Cambridge University Press, 2008), 140, p. 148 (the finalised article which Heymann referred to in draft format).
- 7.
Davis, Jennifer, ‘Locating the Average Consumer: His Judicial Origins, Intellectual Influences and Current Role in European Trade Mark Law’, Intellectual Property Quarterly, no. 2, (2005), pp. 183, p. 188. This has been reiterated based on recent case law by Davis, Jennifer, ‘Revisiting the Average Consumer: An Uncertain Presence in European Trade Mark’, Intellectual Property Quarterly, no. 1, (2015), pp. 15, e.g. p. 21.
- 8.
Mellor, James, David Llewelyn, Moody-Stuart, Thomas, et al, ‘Kerly’s Law of Trade Marks and Trade Names’, (16th edn, Sweet & Maxwell, 2018), p. 54.
- 9.
Pila, Justine, ‘The Subject Matter of Intellectual Property’, (1st edn, Oxford University Press, 2017), p. 18.
- 10.
Advocate General Fennelly in Estée Lauder, dealing with national measures for deciding consumer confusion in unfair competition law, described the average consumer as a “standard (…) defined in community law.” Estée Lauder, Case C-220/98, [1999] ECR I-117, (opinion of AG Fennelly), para 29. Gut Springenheide, a preliminary ruling related to the regulation “on certain marketing standards for eggs” was one of the first decisions to set out the average consumer. See further on the decision in Chap. 10, Sect. 10.2. As is clear from the title of the regulation it encompasses legal standards. These standards include, cf. Art. 10(2)(e) of Regulation 1970/90, the prevention of “statements designed to promote sales, provided that such statements and the manner in which they are made are not likely to mislead the purchaser.” In further qualifying the preliminary question of the German Bundesverwaltungsgericht related to art. 10(2)(e), the Court of Justice stated that it was essentially being asked “to define the concept of consumer to be used as a standard for determining whether a statement designed to promote sales of eggs is likely to mislead the purchaser.” Gut Springenheide and Tusky, Case C-210/96, [1998] ECR I-4657, para 27. See also, Wallberg, Knud, ‘Brug af Andres Varemærker i Digitale Medier: Et Bidrag til Afklaring af Varemærkerettens Indhold og Grænseflader’, (1st edn, Jurist- og Økonomforbundets Forlag, 2015), p. 211.
- 11.
See Mellor, James, David Llewelyn, Moody-Stuart, Thomas, et al, ‘Kerly’s Law of Trade Marks and Trade Names’, (16th edn, Sweet & Maxwell, 2018), p. 60, and “legal construct” p. 180 with reference to Interflora v. M&S has used the term “legal construct.” Analysing the average consumer in the UCPD, Micklitz refers in similar terms to describe the average consumer as “ECJ’s construction.” Micklitz, Hans-W., ‘Unfair Commercial Practices and Misleading Advertising’, in Micklitz, Hans-W, Reich, Norbert and Rott, Peter eds., Understanding EU Consumer Law (1st edn, Intersentia, 2009), 61, p. 87 and also Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 94.
- 12.
Or merely “notional person.” See Mellor, James, David Llewelyn, Moody-Stuart, Thomas, et al, ‘Kerly’s Law of Trade Marks and Trade Names’, (16th edn, Sweet & Maxwell, 2018), p. 52.
- 13.
See Gut Springenheide and Tusky, Case C-210/96, [1998] ECR I-4657, para 14.
- 14.
Analysing harmonisation of European trademark law and the interplay between the EU level and national markets, Ohly has stated that “specific features of national markets can partly be taken into account when national courts apply legal concepts which relate to the impact on the average consumer (…).” Ohly, Ansgar, ‘Concluding Remarks: Postmodernism and Beyond’, in Ohly, Ansgar and Pila, Justine eds., The Europeanization of Intellectual Property Law: Towards a European Legal Methodology (1st edn, Oxford University Press, 2013), 255, p. 259. Dinwoodie and Gangjee have stated that the average consumer “is a normative concept, albeit one not detached from empirical reality.” Dinwoodie, Graeme, and Gangjee, Dev, ‘The Image of the Consumer in European Trade Mark Law’, Social Science Research Network (SSRN), (draft of 3 November 2014), pp. 1, p. 8. In the final version of the article, Dinwoodie and Gangjee have left out this formulation now holding that “the average consumer offers a normatively infused vantage point from which to assess (more objectively) subjective empirical evidence relating to actual consumer perceptions and behaviours.” Dinwoodie, Graeme, and Gangjee, Dev, ‘The Image of the Consumer in EU Trade Mark Law’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 339, p. 353. Analysing the average consumer in light of registration and distinctiveness, Davis has generally claimed that “the average consumer is not a real but a legal concept.” Davis, Jennifer, ‘Promoting the Public Interest and the European Trade Mark Directive: A Contradictory Approach’, ERA Forum, vol. 14/no. 1, (2013), pp. 117, p. 122. The statement by Davis is made analysing registration of trademarks, however, the formulation of the sentence does not indicate that her statement only applies to the registration scenario. See also Mellor, James, Llewelyn, David, Moody-Stuart, Thomas et al, ‘Kerly’s Law of Trade Marks and Trade Names. 1st Supplement’, (1st edn, Sweet & Maxwell, 2014), p. 2. Under the UCPD the average consumer is also denoted a “concept.” See among others, Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 52 and Glöckner, Jochen, ‘The Law Against Unfair Competition and the EC Treaty’, in Hilty, Reto M. and Henning-Bodewig, Frauke eds., Law Against Unfair Competition: Towards a New Paradigm in Europe? (1st edn, Springer, 2007), 77, p. 86. Glinski and Joerges have stated that the UCPD “by and large, totally harmonised this area of law, thereby also codifying, in its Article 5, the concept of the ‘average consumer’ as developed by the ECJ.” Glinski, Carola, and Joerges, Christian, ‘European Unity in Diversity?! A Conflicts-Law: Re-Construction of Controversial Current Developments’, in Purnhagen, Kai, Rott, Peter and Micklitz, Hans-W eds., Varieties of European Economic Law and Regulation: Liber Amicorum for Hans-W Micklitz (1st edn, Springer, 2014), 285, p. 300. The UCPD has stated that one aim of the directive is “clarifying certain legal concepts at Community level” although not referring specifically to the average consumer. Recital 5 of the UCPD. Bakardjieva has called the average consumer a “conceptual model” which – due to it is reference to “concept” – is taken to mean the same as a “legal concept.” Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 533. In Gut Springenheide the Bundesverwaltungsgericht, referring three questions to the Court of Justice, has denoted the average consumer as “an objective concept.” Gut Springenheide and Tusky, Case C-210/96, [1998] ECR I-4657, para 15 (all italics in this footnote are added).
- 15.
Micklitz, Hans-W., ‘Unfair Commercial Practices and Misleading Advertising’, in Micklitz, Hans-W, Reich, Norbert and Rott, Peter eds., Understanding EU Consumer Law (1st edn, Intersentia, 2009), 61, p. 87.
- 16.
See with focus on the UCPD, Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 532.
- 17.
On trademark law: Stuyck, Jules, ‘Consumer Concepts in EU Secondary Law’, Working Paper (2014), pp. 1, p. 8. On the UCPD: Mak, Vanessa, ‘Standards of Protection: In Search of the ‘Average Consumer’ of EU Law in the Proposal for a Consumer Rights Directive’, European Review of Private Law, vol. 19/no. 1, (2011), pp. 25, p. 28, Abbamonte, Guiseppe B., ‘The Unfair Commercial Practices Directive and its General Prohibition’, in Weatherill, Stephen and Ulf Bernitz eds., The Regulation of the Unfair Commercial Practices Under EC Directive 2005/29 (1st edn, Hart, 2007), 11, p. 24, Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 332, Incardona, Rossella, and Poncibò, Cristina, ‘The Average Consumer, the Unfair Commercial Practices Directive, and the Cognitive Revolution’, Journal of Consumer Policy, vol. 30/no. 1, (2007), pp. 21, p. 45 and Scholes, Annette Nordhausen, ‘Behavioural Economics and the Autonomous Consumer’, Cambridge Yearbook of European Legal Studies, vol. 14/no. 1, (2011), pp. 297, p. 318. Duivenvoorde 2015 calling his PhD thesis “The Consumer Benchmarks in the Unfair Commercial Practices Directive.” Duivenvoorde, Bram B., ‘The Consumer Benchmarks in the Unfair Commercial Practices Directive’, (1st edn, Springer, 2015). The UCPD has stated that “this Directive takes as a benchmark the average consumer, who is reasonably well-informed and reasonably observant and circumspect, taking into account… .” Recital 18 of the UCPD.
- 18.
For the “yardstick” terminology see: On trademark law: Advocate General Colomer Mag Instrument v. OHIM, Case C-136/02 P, [2004] ECR I-9165, (opinion of AG Colomer), para 48, Maniatis, Spyros M., ‘Competition and the Economics of Trade Marks’, in Sterling, Adrian ed, Intellectual Property and Market Freedom, (1st edn, Sweet & Maxwell, 1997), 63, p. 88, Heymann on a US perspective, Heymann, Laura A., ‘The Reasonable Person in Trademark Law’, Saint Louis University Law Journal, vol. 52/no. 3, (2008), pp. 781. On the UCPD: Micklitz, Hans-W., ‘Unfair Commercial Practices and Misleading Advertising’, in Micklitz, Hans-W, Reich, Norbert and Rott, Peter eds., Understanding EU Consumer Law (1st edn, Intersentia, 2009), 61, p. 88 and Howells, Geraint G., Micklitz, Hans-W, and Wilhelmsson, Thomas, ‘European Fair Trading Law the Unfair Commercial Practices Directive’, (1st edn, Ashgate, 2006), p. 111.
- 19.
Incardona, Rossella, and Poncibò, Cristina, ‘The Average Consumer, the Unfair Commercial Practices Directive, and the Cognitive Revolution’, Journal of Consumer Policy, vol. 30/no. 1, (2007), pp. 21, p. 29 (italics added). At this stage, no further scrutiny is made into the differences between the average consumer in trademark law and reference to vulnerable consumers under the UCPD. For an analysis of this aspect, see Chap. 7.
- 20.
- 21.
- 22.
Azoulai, Loïc, ‘The Europeanisation of Legal Concepts’, in Neergaard, Ulla and Ruth Nielsen eds., European Legal Method in a Multi-Level EU Legal Order (1st edn, Djøf Publishing, 2012), 165, p. 165-166.
- 23.
The statement is made comparing European and US matters. Rose has claimed that US intellectual property law often offers an assessment “ex post through the judiciary” of what is protected. Rose, Carol M., ‘Introduction: A Real Property Lawyer Cautiously Inspects the Edges of Intellectual Property’, in Dreyfuss, Rochelle Cooper and Ginsburg, Jane C. eds., Intellectual Property at the Edge: The Contested Contours of IP (1st edn, Cambridge University Press, 2014), 1, p. 7.
- 24.
The quote continues: “, while substantial legal costs are incurred both in providing advice to actors and in adjudicating disputes over unresolved questions.” This may be inserted when assessing the consequences of having a broad confusion standard. Kaplow, Louis ‘Rules Versus Standards: An Economic Analysis’, Duke Law Journal, vol. 42 (1992), pp. 557, p. 622.
- 25.
That the distinction between rules and standards is unclear, is illustrated by the following example set up by Kaplow: “[A]dvance determination of the appropriate speed on expressways under normal conditions, or even of the criteria that will be relevant in adjudicating reasonable speed (safety and the value of time, but not the brand of automobile or the particular driver’s skill), are “rule-like” when compared to asking an adjudicator to attach whatever legal consequence seems appropriate, given whatever norms and facts seem relevant. Yet the same advance determination would be “standard-like” when compared to a precise advance determination of what constitutes normal conditions and what constitutes reasonable speed under various exceptional circumstances.” Ibid, p. 562.
- 26.
Sullivan, Kathleen M., ‘The Justices of Rules and Standards’, Harvard Law Review, vol. 106/no. 1, (1992), pp. 22, p. 57. See also, Cross, Rupert, and Harris, J. W., ‘Precedent in English Law’, (4th edn, Oxford University Press, 1991), p. 18 and Ehrlich, Isaac, and Posner, Richard A., ‘An Economic Analysis of Legal Rulemaking’, the Journal of Legal Studies, vol. 3/no. 1, (1974), pp. 257.
- 27.
Ehrlich, Isaac, and Posner, Richard A., ‘An Economic Analysis of Legal Rulemaking’, the Journal of Legal Studies, vol. 3/no. 1, (1974), pp. 257.
- 28.
For instance, Schauer’s seminal philosophical analysis of rule-based decision making has been criticised by Rakowski for being “too abstract and taxonomic to interest legislators and regulators.” Rakowski, Eric, ‘Book Review of Schauer, Frederick. Playing by the Rules: A Philosophical Examination of Rules-Based Decision Making in Law and in Life’, Ethics, vol. 103/no. 1, (1993), pp. 828.
- 29.
Kaplow, Louis ‘Rules Versus Standards: An Economic Analysis’, Duke Law Journal, vol. 42 (1992), pp. 557, p. 559-560.
- 30.
Ibid, p. 560. See also Shavell elaborating on the cost and flexibility of rules in Shavell, Steven. ‘Law Versus Morality as Regulators of Conduct’, American Law and Economics Review, vol. 4/no. 2, (2002), pp. 227.
- 31.
Schauer, Frederick, ‘Playing by the Rules – A Philosophical Examination of Rule-Based Decision-Making in Law and in Life’, (1st edn, Clarendon, 1992), p. 23.
- 32.
Above, operative facts are mainly referred to in the realm of case law, however, the understanding of operative facts is similarly relevant to the analysis of rules. See above Chap. 2, Sect. 2.2.3. See also Schauer, Frederick, ‘Playing by the Rules – A Philosophical Examination of Rule-Based Decision-Making in Law and in Life’, (1st edn, Clarendon, 1992), p. 23 and Schlag, Pierre, ‘Rules and Standards’, UCLA Law Review, vol. 33 (1985-1986), pp. 379, p. 381-382.
- 33.
Schlag, Pierre, ‘Rules and Standards’, UCLA Law Review, vol. 33 (1985-1986), pp. 379, p. 428.
- 34.
Hence, Schlag has stated that “[t]he paradigm example of a rule has a hard empirical trigger and a hard determinate response.” Ibid, p. 382.
- 35.
Kelman, Mark, ‘A Guide to Critical Legal Studies’, (1st edn, Harvard University Press, 1987), p. 41.
- 36.
Schauer, Frederick, ‘Playing by the Rules – A Philosophical Examination of Rule-Based Decision-Making in Law and in Life’, (1st edn, Clarendon, 1992), p. 32.
- 37.
Posner, Richard A., ‘How Judges Think’, (1st edn, Harvard University Press, 2008), p. 137.
- 38.
Diver, Colin S., The Optimal Precision of Administrative Rules, The Yale Law Journal, vol. 93/no. 1 (1983), pp. 65, p. 67. It has furthermore been stated by Diver that ensuring this “is usually bought at the price of incongruity or ex ante rulemaking costs.” Ibid, p. 91.
- 39.
Kaplow, Louis ‘Rules Versus Standards: An Economic Analysis’, Duke Law Journal, vol. 42 (1992), pp. 557, p. 560. See also Parisi, Francesco and Fon, Vincy, ‘The Economics of Lawmaking’, (1 edn, Oxford University Press, 2009), p. 9-12, Shavell, Steven. ‘Law Versus Morality as Regulators of Conduct’, American Law and Economics Review, vol. 4/no. 2, (2002), pp. 227, in particular, p. 234-236 on “Specificity and Flexibility of Rules” and Sullivan, Kathleen M., ‘The Justices of Rules and Standards’, Harvard Law Review, vol. 106/no. 1, (1992), pp. 22, p. 24-123. Sullivan has argued that rules based on ex ante perspectives create more clarity for “private actors” encompassed by the rules than standards based on ex post perspectives. Ibid, p. 62-64, including footnote 259 of the text and the sources referred to there.
- 40.
Schlag, Pierre, ‘Rules and Standards’, UCLA Law Review, vol. 33 (1985-1986), pp. 379, p. 428.
- 41.
Kelman, Mark, ‘A Guide to Critical Legal Studies’, (1st edn, Harvard University Press, 1987), p. 41.
- 42.
Mindgames v. Western Publishing, 218 F.3d 652 (7th Cir.), [2000], p. 657. See also Cross, Rupert, and Harris, J. W., ‘Precedent in English Law’, (4th edn, Oxford University Press, 1991), p. 15-16.
- 43.
Cross, Frank, Jacobi, Tanja and Tiller, Emerson, ‘A Positive Political Theory of Rules and Standards’, University of Illinois Law Review, no. 1, (2012), pp. 1, p. 18. For a recent and thorough account of the multifactor test for deciding likelihood of confusion under US trademark law, see Beebe, Barton, ‘Trademark Law: An Open-Source Casebook’, Trademark Infringement (V3 edn, 2016), p. 35-85.
- 44.
Beebe has detected that there are inconsistencies in the multifactor test in US trademark law among the Federal Circuit Courts. Hence, Beebe stated in 2006 that “[c]ourts, commentators, and practitioners have all the while speculated about which factors, if any, actually drive the outcome of the test, how the factors interact, and most importantly, whether the different tests, given the same facts, would yield different outcomes.” Beebe, Barton, ‘An Empirical Study of the Multifactor Tests for Trademark Infringement’, California Law Review, vol. 94 (2006), pp. 1581, p. 1584. The inconsistency of the multifactor test has been revisited by Matuszewski in 2016 holding, similar to Beebe, that “due to the test’s frequent evolution, the individual circuits have split off and developed their own versions of likelihood of confusion.” Matuszewski, Kenneth A. ‘Casting out Confusion: How Exclusive Appellate Jurisdiction in the Federal Circuit would Clarify Trademark Law’, INTA Papers (2016), pp. 1, p. 3.
- 45.
Dinwoodie, Graeme, and Gangjee, Dev, ‘The Image of the Consumer in EU Trade Mark Law’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 339, p. 355.
- 46.
As stated by Richard Posner: “No sensible person supposes that rules are always superior to standards, or vice versa, though some judges are drawn to the definiteness of rules and others to the flexibility of standards.” Mindgames v. Western Publishing, 218 F.3d 652 (7th Cir.), [2000], p. 657. See also Cross, Frank, Jacobi, Tanja and Tiller, Emerson, ‘A Positive Political Theory of Rules and Standards’, University of Illinois Law Review, no. 1, (2012), pp. 1, p. 15-16.
- 47.
- 48.
- 49.
Therefore, the legislative requirement of likelihood of confusion is not an example of ex ante intellectual property legislation in line with the above finding by Rose.
- 50.
Discussing the development of the unfairness standard under the UCPD, Howells et al have stated that the average consumer is part of a test under the unfairness standard, i.e. implicitly stating that the average consumer is not a standard in its own right. Howells, Geraint G., Micklitz, Hans-W, and Wilhelmsson, Thomas, ‘European Fair Trading Law the Unfair Commercial Practices Directive’, (1st edn, Ashgate, 2006), p. 20-21.
- 51.
Samuel, Geoffrey, ‘Does One Need an Understanding of Methodology in Law before One can Understand Methodology in Comparative Law?’, in van Hoecke, Mark ed., Methodologies of Legal Research: What Kind of Method for what Kind of Discipline? (1st edn, Hart, 2011), 177, p. 205.
- 52.
- 53.
See among others, Bakardjieva discussing a similar problem in light of deciding the legal standard of deception under German law by way of actual consumer perception. Engelbrekt, Antonina Bakardjieva, ‘Fair Trading Law in Flux? National Legacies, Institutional Choice and the Process of Europeanisation’, (1st edn, Stockholm University, 2003), p. 327-328.
- 54.
- 55.
See ibid, Sect. 1.2, including footnote 23.
- 56.
Towfigh, Emanuel V. and Petersen, Niels, ‘Economic Methods for Lawyers’, (1st edn, Edward Elgar, 2015), p. 18 and p. 25.
- 57.
- 58.
Despite posing this key question in his thesis, Hannerstig does not from a theoretical viewpoint address what is understood by a “legal fiction.” Hannerstig, Niclas, ‘The Average Consumer – Legal Fiction or Reality? A Comparative Study between European and American Trademark Law’, LUP Student Papers (2011). It should be mentioned, that although the paper by Hannerstig is not peer reviewed, it is included as a source due to the credibility of his comparative analysis of European and US law.
- 59.
Dinwoodie, Graeme B, ‘The Europeanization of Trade Mark Law’, in Ohly, Ansgar and Pila, Justine eds., The Europeanization of Intellectual Property Law: Towards a European Legal Methodology (1st edn, Oxford University Press, 2013), 72, p. 93 (italics added).
- 60.
Although reference is not made specifically to the average consumer, the reference by the authors is made finalising an analysis of the average consumer and therefore seems chiefly to be referring to the consumer in this version. Dinwoodie, Graeme, and Gangjee, Dev, ‘The Image of the Consumer in EU Trade Mark Law’, in Leczykiewicz, Dorota, and Weatherill, Stephen eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition Law (1st edn, Hart, 2016), 339, p. 377.
- 61.
See among others, Vaihinger, Hans, ‘The Philosophy of ‘as if’: A System of the Theoretical, Practical and Religious Fictions of Mankind’, (1st edn, Harcourt Brace, 1924) (a translation of Vaihinger’s original text in German from 1911), and Kelsen’s response to Vaihinger, Kelsen, Hans, ‘On the Theory of Juridic Fictions with Special Consideration of Vaihinger’s Philosophy of the as-if’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 3 (a translation of Kelsen’s original text in German from 1919) and Fuller, Lon L., ‘Legal Fictions’, (1st edn, Stanford University Press, 1967). Legal fictions. Stanford University Press: Stanford (first published as three journal articles from 1930-1931 in Illinois Law Review.).
- 62.
Lind, Douglas, ‘The Pragmatic Value of Legal Fictions’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 83, p. 84.
- 63.
Samuel, Geoffrey, ‘Is Law a Fiction?’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 31, p. 32.
- 64.
Schauer, Frederick, ‘Legal Fictions Revisited’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 113, p. 126.
- 65.
Ibid, p. 127.
- 66.
Lind, Douglas, ‘The Pragmatic Value of Legal Fictions’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 83, p. 88 and p. 93.
- 67.
Ross, Alf, ‘Legal Fictions’, in Hughes, Graham ed., Law, Reason, and Justice: Essays in Legal Philosophy, (1st edn, Springer, 1969), 217, p. 231.
- 68.
Herbert, describing the reasonable man in tort law, called this model a “mythical figure”, stating that this model “in another science is held by the Economic Man, and in social and political discussions by the Average or Plain Man.” Herbert, A. P., ‘Uncommon Law – being Sixty-Six Cases Revised and Collected in One Volume, Including Ten Cases Not Published before’, (6th edn, Methuen & Co. Ltd, 1948), p. 2-3. It has to be borne in mind that not all find the “myth” analogy appropriate, analysing legal fictions. Hence, Scott has stated that ““legal myth” refers to false propositions that are erroneously taken to be true and acted upon as if true,” i.e. the propositions are not recognised as being false. Hamilton, K. Scott, ‘Prolegomenon to Myth and Fiction in Legal Reasoning, Common Law Adjudication and Critical Legal Studies’, the Wayne Law Review, vol. 35 (1988-1989), pp. 1449, p. 1471.
- 69.
As opposed to the reasonable man, Herbert has argued that “while the Economic Man has under the stress of modern conditions almost wholly disappeared from view, his Reasonable cousin has gained in power with every case in which he has figured.” Herbert, A. P., ‘Uncommon Law – being Sixty-Six Cases Revised and Collected in One Volume, Including Ten Cases Not Published before’, (6th edn, Methuen & Co. Ltd, 1948), p. 4.
- 70.
Ross, Alf, ‘Legal Fictions’, in Hughes, Graham ed., Law, Reason, and Justice: Essays in Legal Philosophy, (1st edn, Springer, 1969), 217, p. 231. See also Ross, Alf, ‘Directives and Norms’, (1st edn, Clark, 1968), p. 31-32.
- 71.
- 72.
Lind, Douglas, ‘The Pragmatic Value of Legal Fictions’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 83, p. 91.
- 73.
Ibid, p. 92.
- 74.
Ibid, p. 94.
- 75.
Stanford Philosophy Encyclopedia section 1. Available at: https://plato.stanford.edu/entries/abduction/ (last visited 26 May 2019).
- 76.
Samuel, Geoffrey, ‘Is Law a Fiction?’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 31, p. 34.
- 77.
Ibid, p. 44.
- 78.
Mar, Maksymilian del, ‘Legal Fictions and Legal Change’, International Journal of Law in Context, vol. 9/no. 4, (2013), pp. 442, p. 444.
- 79.
Ibid, p. 445.
- 80.
- 81.
Wilhelmsson, Thomas, ‘The Average European Consumer: A Legal Fiction?’, in Wilhelmsson, Thomas, Paunio, Elina and Pohjolainen, Annika eds., Private Law and the Many Cultures of Europe (1st edn, Kluwer Law International, 2007), 243, p. 247.
- 82.
On the fact/law divide, see for instance, Chap. 11, Sect. 11.1. Dinwoodie, Graeme B, ‘The Europeanization of Trade Mark Law’, in Ohly, Ansgar and Pila, Justine eds., The Europeanization of Intellectual Property Law: Towards a European Legal Methodology (1st edn, Oxford University Press, 2013), 72, p. 93.
- 83.
Achinstein, Peter, ‘Theoretical Models’, the British Journal for the Philosophy of Science, vol. 16/no. 62, (1965), pp. 102, p. 104-105.
- 84.
Samuel, Geoffrey, ‘Is Law a Fiction?’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 31, p. 41.
- 85.
Ibid, p. 44.
- 86.
Del Mar, Maksymilian, ‘Legal Fictions and Legal Change’, International Journal of Law in Context, Vol. 9/no. 4, (2013), pp. 442, p. 457 and Lind, Douglas, ‘The Pragmatic Value of Legal Fictions’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 83, p. 99. Upon contextually assessing legal fictions, it has to be borne in mind, according to Lind, that they may on the one hand be useful and workable in some contexts but confusing, harmful on the other or even in some contexts “stoke the flames of injustice.” Ibid, p. 100.
- 87.
Ibid, p. 94. Part of this “general stock of beliefs” is “established truths, meanings, or understandings in some extralegal realm or within law.” Lind, Douglas, ‘The Pragmatic Value of Legal Fictions’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 83, p. 84.
- 88.
See Sect. 5.3.1 above.
- 89.
Lind, Douglas, ‘The Pragmatic Value of Legal Fictions’, in Del Mar, Maksymilian and Twining, William eds., Legal Fictions in Theory and Practice (1st edn, Springer, 2015), 83, p. 97 (italics in the first quote are added).
- 90.
Ibid, p. 98 (italics added).
- 91.
Ibid, p. 98.
- 92.
Ibid, p. 100.
- 93.
Stuyck, Jules, ‘Setting the Scene’, in Micklitz, Hans-W. et al eds., Cases, Materials and Text on Consumer Law (1st edn, Ius Commune, 2010), 1, p. 29 and Reich, Norbert, Micklitz, Hans-W., and Rott, Peter, ‘European Consumer Law’, (2nd edn, Intersentia, 2014), p. 51. The latter authors have argued though that there are common features of the term “consumer” under Community law.
- 94.
- 95.
Even if a “reality extraordinaire” existed, it may not serve as benchmark for measuring “conceptual truths” found in law. Without pre-empting the analysis and the normative aspects of this book on how the average consumer should be, it is safe to say that the average consumer by definition is conceptualised by law. Therefore, it is not necessarily fruitful to measure this legal fiction against reality – an average consumer is not found in persona in real life as per the pragmatic theory underlying legal fictions.
- 96.
See Chap. 11.
- 97.
- 98.
Kelsen, Hans, ‘General Theory of Norms’, (Clarendon Press, 1991), p. 256, including footnote 2 of the text (italics added).
- 99.
As an illustration of the overlapping terminological use of “legal fictions” and “legal constructs” Heymann is stating “that as we teach students trademark law, we should remind them that, as in tort law, the “reasonable person” is a judicial construct-one purportedly based on empirical evidence, but a construct nonetheless.” Calling the US counterpart of the average consumer a “judicial construct” Heymann refers to Dinwoodie denoting it a “legal fiction.” Heymann, Laura A., ‘The Reasonable Person in Trademark Law’, Saint Louis University Law Journal, vol. 52/no. 3, (2008), pp. 781, including footnote 26 of the text.
- 100.
Frändberg, Åke, ‘An Essay on Legal Concept Formation’, in Jaap C., Hage and von der Pfordten, Dietmar eds., Concepts in Law (1st edn, Springer, 2009), 1, p. 2. Concepts with a law-stating function Frändberg has also denoted “law-concepts”, and “concepts of law” and concepts with a juridical-operative function are also denoted “juridical concepts” and “concepts about law.”
- 101.
If law-stating concepts are found in legal texts, they are denoted “genuine law-stating concepts” and “official law-stating concepts.” Ibid, p. 3.
- 102.
Ibid, p. 4.
- 103.
Pfordten, Dietmar von der, ‘About Concepts in Law’, in Hage, Jaap C. and Dietmar von der Pfordten eds., Concepts in Law (1st edn, Springer, 2009), 1, p. 29-30.
- 104.
Tuori, Kaarlo, ‘Self-Description and External Description of the Law’, NoFo vol. 2 (2006), pp. 27, p. 35.
- 105.
When creating concepts, Gerring has argued that linguistically concepts may be created from new or existing words. As for new words, it may be more troublesome to establish a common ground of understanding of what they mean and costlier to apply by judges and advisors. These concepts may seem arbitrary and not intuitive. Gerring, John, ‘What Makes a Concept Good? A Criterial Framework for Understanding Concept Formation in the Social Sciences’, Polity, vol. 31/no. 3, (1999), pp. 357, p. 361 and Kähler, Lorenz, ‘The Influence of Normative Reasons on the Formation of Legal Concepts’, in Hage, Jaap C. and von der Pfordten, Dietmar eds., Concepts in Law (1st edn, Springer, 2009), 81, p. 91-92. What is then often seen is the creation of concepts from words already known and combination of words where the first word qualifies the other. Murphy, Gregory L., ‘The Big Book of Concepts’, (1st edn, Bradford Books, 2004), p. 465. According to Kähler, “terminology constraints” may limit the number of words available for the creation of legal concepts. Kähler ibid, p. 92. On the linguistic aspects of the term “average consumer,” see for instance, Chap. 8, in particular Sect. 8.7. Here it emerges that the average consumer has been developed from at least one word known to trademark law and EU law in general – “consumer.” Obviously, “average” is also a known word but not from the legal world. “Average” qualifies “consumer” and on the surface, it gives the intuitive impression that it may be inferred using math who is the average consumer. As it appears, it is the stance of this book that this is not the case.
- 106.
As for other theories of concepts, e.g. Kähler has presented a promising theory of concepts as “evaluative” in the sense understood as “concepts that can be used both to approve and repudiate a situation or an action.” The average consumer may also to a certain extent be evaluative in that it is used to decide if there is confusion or not. According to Stavropoulos, it makes more sense that a concept is developed along certain practices in a consistent manner than “invoking special, ad hoc concepts” in that “concepts don’t lie around, as it were, to be picked up in support of different interpretations.” Stavropoulos, Nicos, ‘Objectivity in Law’, (1st edn, Clarendon Press, 1996), p. 197. This presents an argument for operating a consistent average consumer in European trademark law.
- 107.
This includes certain references to adjacent areas of law – i.e. the UCPD.
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Laustsen, R.D. (2020). The Average Consumer as a Legal Fiction and Beyond. In: The Average Consumer in Confusion-based Disputes in European Trademark Law and Similar Fictions . Springer, Cham. https://doi.org/10.1007/978-3-030-26350-8_5
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