Case No. IP-2014-000051

The average consumer - submissions 106.The goods the subject of dispute in this case are preformed concrete building elements, as previously described, and the services complained of are the design of such elements and the provision of construction management services and services relating to the design of buildings to such customers. That is apparent from the particulars of claim.107.Mr Harbottle for the Defendants submits that the average consumer in relation to those goods and services is a specialist in the building trade who is purchasing for mainly large, scale, commercial or institutional building projects, rather than individual domestic ones; that such a consumer often purchases following the invitation of tenders; that he may require potential suppliers to be on a list of approved suppliers, or to pre-qualify by the provision of insurance and financial details and risk assessments before they can tender as part of a due diligence process; that he frequently purchases large quantities of materials in high-value contracts. The Defendants rely on the oral evidence of Oran’s witness, Christina Lines, who agreed in cross examination with these principles. She additionally stated that such purchasing decisions on large scale projects with a main contractor were often made by a supply chain manager, and that such a role was generally occupied by persons with the relevant supply chain management professional qualification. Accordingly, Mr Harbottle for the Defendants submits that the average consumer is likely to be a sophisticated and knowledgeable individual who will pay a high degree of attention to the identity of the party from which it is purchasing and this renders confusion less likely.108.Conversely, Oran does not say that the average consumer in this case is anything other than an ordinary human being, whose reaction is the same as anyone else in this court. Mr Moody-Stuart submits that the terms Oran and Oranmore are so closely similar they are almost interchangeable, such that even when a person is trying very hard indeed not to get it wrong, they can nonetheless get the terms mixed up. He reminds me that Mr Harbottle mistakenly referred to Oran when he meant Oranmore in writing in his skeleton argument and orally in closing argument, as did one of the Defendants’ witnesses.109.Mr Moody-Stuart submits for Oran that the purchase processes described by Miss Lines, which the Defendants rely on as rendering confusion less likely, do not vitiate the likelihood of confusion, as the care and attention given by the consumer in such cases is not to do with who is supplying but their attributes – namely whether they are insured, whether they are on a list of approved suppliers etc. He submits that if such a consumer has already assumed a connection between Oran and Oranmore because of confusion between mark and sign, that is something which is already in his mind when the tenders are requested. 110.Mr Moody-Stuart reminds me that the guidance of Specsavers sub-paragraph 52(b) is that the average consumer “rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind”. He submits that because of this doctrine of imperfect recollection, the average consumer in this case is not more careful than an ordinary human being, including those in this courtroom, and is just as likely to be confused between the Registered Mark and the ORANMORE Signs, with or without the device, given the close similarity between the Registered Mark and ORANMORE Signs and the fact that they are used in relation to identical goods and services. The average consumer - conclusions 111.The average consumer in this case is a consumer of specialised pre-cast concrete building elements and design and consultancy services relating to design of those elements and building design. It is common ground that the relevant goods are high-value products. As well as his deemed features described in Specsavers sub-paragraphs 52(b) and 52(c), I find that he has a number of additional features to be considered:i)He is a construct from a spectrum of consumers with different roles and different purchasing responsibilities. Some will be employed within large main contractors responsible for building large-scale commercial and institutional projects for third party clients. Some will be employed within smaller contractors, building smaller-scale developments for third party clients. Some may be, or may be employed by, developers sourcing for their own builds. They may be professional supply chain managers, quantity surveyors, procurement managers, quantity surveyors, architects, building professionals or property developers. However the average consumer is one with professional experience in the building industry.ii)Although some consumers will only order from suppliers they have pre-approved or dealt with before, and some will carry out extensive due diligence on potential suppliers, requiring financial, insurance and other details as part of a tender for work, others will not. In my judgment the average consumer in this case will exercise an average degree of attention to the identity of the potential supplier but not the high degree of scrutiny for which the Defendants contend, which I accept he may give to the financial, risk and other attributes of a potential supplier.iii)The different types of purchasing process described in sub-paragraph (ii) above form part of the context within which the average consumer operates. I am satisfied that the potential for confusion of the average consumer can occur at various stages of the purchasing process: for example, when inviting suppliers to price a job, or to submit information for the purposes of pre-approval, or when notifying suppliers of a tender process and inviting them to participate.iv)I find that the average consumer in this case is sensitive to the reputation of a potential supplier and places a value on previous dealings he has had with them and recommendations he has received of that supplier from others. Signs used by the Defendants 112.It is common ground that the Defendants’ use complained of falls into three categories: (i) use of ORANMORE PRECAST or ORANMORE PRE-CAST simpliciter, (ii) use of the ORANMORE PRECAST or ORANMORE PRE-CAST together with the First Defendant’s Device (which I will refer to as ORANMORE Signs plus device); and (iii) use of ORANMORE in www.oranmore.co.uk (this is listed as a separate issue – Issue 10 – but I find it convenient to consider it together with the other uses).