The Average Consumer as a Legal Fiction and Beyond
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.”