The Fairy Tale of the Average Consumer: Why We Should Not Rely on the Real Consumer When Assessing the Likelihood of Confusion

The present article considers whether the confusion analysis in trademark law is at risk of being used strategically as a self-servicing mechanism by the industry to obtain trademark rights to descriptive, cultural and non-traditional signs. In this context, two features of the trademark system are particularly worrisome. First, trademark owners can strengthen the distinctive character of their marks by investing in marketing and branding campaigns. Second, trademark owners can afford expensive surveys demonstrating the high distinctiveness of their marks and strengthening their position in an infringement case. A study of 189 Dutch cases reveals that in the likelihood-of-confusion assessment, the degree of a mark’s distinctiveness and corresponding empirical findings can have a deep impact. However, the study also shows that descriptive, cultural and non-traditional signs were not often disputed. In practice, the risk of misappropriating these signs might therefore be limited. In some cases, however, trademark owners did succeed in achieving a broad scope of protection regarding descriptive, cultural and non-traditional signs. Therefore, national courts should have more room to make normative corrections in favour of freedom-of-competition interests. This would allow judges to prevent trademark owners from achieving unjustified economic advantages flowing from these signs.