The Average Consumer and Its More or Less Distant Cousins
Legal fictions are also found in EU design law and European patent law operating respectively, “the informed user” and “the person skilled in the art.” Further, outside of intellectual property law, in tort law, “the reasonable person” is used to decide the standard of care. Outside of law, in economics, a fiction (or a model) is the “rational actor model.” This chapter compares the average consumer in European trademark law with these other fictions.
This chapter concludes that the intellectual property law legal fictions have similar functions in their respective legal environments, i.e. they are calibration mechanisms for the senior and junior owners in registration and infringement.
As for the comparison with the reasonable person, both are fictions, but the reasonable person is closer intertwined with the reasonableness standard than the average consumer with the likelihood of confusion standard. Further, that the reasonable person to a further extent is based on objective circumstances.
It makes sense to talk about the average consumer metaphorically as the “not so distant cousin” of the rational actor model. But, the generalisations inherent in the average consumer are not allowed, as suggested by some, because of its resemblance with the rational actor.