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Tuesday December 8, 2020

TRADEMARKS: The Perspective of the Average Consumer

Authored by: Marc J. Belliveau Posted in: Business Law

In a court of law, a judge must often assess a person’s act or omission against a certain legal standard of human conduct to determine whether that person’s behaviour was harmful or unlawful.

The Reasonable Person

In general, the legal standard is what a reasonable person would have done under the same circumstances.

The doctrine has evolved over the centuries from the patriarchal Roman concept of bonus pater familias (i.e. a good family father) to the colourfully hypothetical “man on the Clapham omnibus” used during the Victorian era. Today, the reasonable person is imbued with a broad duty of care, above-average intellect and a significant degree of foresight.

These analytical “reasonableness” standards are purely legal fictions, made up and used by judges to arrive at a particular outcome in a judicial proceeding.

The Skilled Inventor or Creative Artist

The same analytical standard does not apply when it comes to intellectual property laws. In particular, the reasonable person is excluded from patent, copyright and, in an odd way, trademark law.

Canadian patent law assesses protection of a claimed invention against the standard of a “person skilled in the art or science”. That is why patent decisions typically rely on opinions of experts.

Copyright law measures how much of a work has been infringed depending on how much of the “author’s skill and judgement” forms part of what was copied without permission, including both literal and non-literal elements. Here a judge evaluates copyright subjectively, like an art critic.

These two standards are higher than the “reasonable person” standard because they invoke a higher degree of intellectual and legal analysis required of judges to resolve an infringement dispute.

The Average Consumer

In contrast to patent and copyright law, trademark law aims to protect consumers from unfair or deceptive business practices, such that its doctrine of brand confusion forces judges to consider the average consumer’s perspective when comparing two confusingly similar trademarks. That “average” consumer is apparently not as intelligent or careful as the fabled “reasonable” person.

In Canada’s leading case on trademark confusion, in which Mattel Inc. tried and failed to stop a Montreal restaurant chain from using the word BARBIE, the Supreme Court of Canada held that the appropriate standard of comparison between two confusingly similar trademarks is that of the “ordinary casual consumer somewhat in a hurry”. 

In other words, a judge must imagine a “consumer of average intelligence and caution” casually encountering both trademarks in the same marketplace, to determine whether such a fictional character would be likely to confuse them as originating from the same source.

This so-called average consumer is not a “careful and diligent purchaser” who studiously compares two brands and relevant surrounding circumstances. No, she or he is a mythical human being with average intellect, an imperfect recollection and little time to analyze two similar brands, because shopping for any goods or services is apparently done both casually and in a hurry.

Yet, despite those lesser intellectual characteristics, the Canadian consumer is also deemed by law to be functionally bilingual in order to recognize a confusingly similar trademark expressed in the other official language of the country.

Moron in a Hurry

In the Mattel case, the Supreme Court expressly rejected the less sophisticated, although catchy and humourous, “moron in a hurry” standard, which is still used judicially in other common law countries.

That test is relatively easy to apply. For example, for the BARBIE doll brand: “only a moron in a hurry would confuse these two trademarks and believe children’s dolls and barbecued ribs come from the same source!”. Nevertheless, that is not the legal standard in Canada.

Canadian judges believe our consumers deserve more credit than that and are not “completely devoid of intelligence or of normal powers of recollection” or “totally unaware or uninformed as to what goes on around them”.

Thus, the mythical consumer in Canadian trademark law: (a) is not a moron, but bilingual, (b) has average intellect, but imperfect recollection, and (c) is a casual observer, but in a hurry.

Reasonable versus Average

What I find amusing about these aspects of the “average consumer” standard is that judges in Canada usually have multiple academic degrees and are high intellect individuals. Instead of putting on their usual “reasonable person” hat to assess a legal issue, which is not too distant a state of mind for them, trademark law forces them to analytically lower the bar (pardon the pun) to assess confusingly similar brands, which may be somewhat unfamiliar territory for many of them.

If you would like more information about Trademarks, please contact our Trademark Agent, Marc Belliveau.

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