The UCPD and Trademark Average Consumers: Two of a Kind?
This chapter compares the UCPD average consumer with the European trademark law average consumer. Both fictions have the same characteristics, and they discount the least and most attentive consumers. With the reference by the UCPD to the average consumer though, the EU legislature has sent a significant message to the national legislatures and judiciaries to be careful when contextualising the average consumer. This is also seen by UCPD’s reference to the “social, cultural and linguistic factors, as interpreted by the Court of Justice.”
The UCPD’s reference to other consumer models, i.e. the “confident consumer,” the “vulnerable consumers” and an “average member” of “a particular group of consumers,” only to some extent manifests in substantial differences from the European trademark law average consumer. For the vulnerable consumers though, represented by children, the UCPD more narrowly protects consumers, including children, where European trademark law protects senior and junior trademark owners.