Case No. IP-2015-000146

48.So far as I am aware, the CJEU has never expressly stated either who qualifies as the ‘relevant class of persons’ in the context of art.7(3) or what will amount to significant proportion of such persons, beyond saying that the tribunal must not rely on predetermined percentages (see Windsurfing at [52]). As will become apparent, it matters in the present case.49.In The Sofa Workshop Ltd v Sofaworks Ltd [2015] EWHC 1773 (IPEC); [2016] FSR 3, having reviewed the case law, I said this in the context of infringement of a trade mark pursuant to art.9(1)(b) of the Regulation:“[109] Thus, in relation to whether there is a likelihood of confusion and therefore infringement of a trade mark under art.9(1)(b), the view of the average consumer provides the benchmark. The average consumer’s view can be taken to be consistent with the view of a significant proportion of relevant actual consumers. Relevant actual consumers are those to whom the mark is an indication of origin of the relevant goods or services and who are in addition reasonably well-informed, reasonably circumspect and observant.”50.It seems to me that if what I described there as ‘relevant actual consumers’ are taken to be the ‘relevant class of persons’, an analogy can be drawn. The relevant class of persons consists of actual consumers who have the characteristics of the average consumer in a particular case. They will be always reasonably well-informed, reasonably circumspect and observant. In addition they will have the further characteristics of the average consumer arising from the particular facts of the case. I consider the attributes of the average consumer in these proceedings below.51.The CJEU has held that a trade mark has distinctive character if a significant proportion of the relevant class of persons perceives goods designated by the mark as originating from a single undertaking (Windsurfing at [52]). On the other hand, the size of the proportion with that perception is one of the factors the tribunal may take into account when reaching a conclusion on acquired distinctiveness (Windsurfing at [51]). This implies that the smallest proportion which still qualifies as a significant proportion is markedly greater than de minimis.52.In the context of infringement, a significant proportion of relevant consumers may be less than half, see Interflora Inc v Marks & Spencer (Interflora II) [2014] EWCA Civ 1403; [2015] FSR 10, at [103].53.Maintaining the analogy with infringement, I infer that a significant proportion of relevant persons in the context of art.7(3) means a proportion markedly above de minimis but not necessarily over half. Acquired distinctiveness under art.52(2) 54.Art.52(1) so far as is relevant and art.52(2) provide as follows: “ 1. An EU trade mark shall be declared invalid on application to the Office or on the basis of a counterclaim in infringement proceedings: (a) where the EU trade mark has been registered contrary to the provisions of Article 7; … 2. Where the EU trade mark has been registered in breach of the provisions of Article 7(1)(b), (c) or (d), it may nevertheless not be declared invalid if, in consequence of the use which has been made of it, it has after registration acquired a distinctive character in relation to the goods or services for which it is registered. ” 55.There is no reason to doubt that ‘distinctive character’ in art.52(2) has the same meaning as in art.7(3), so the law will be the same for both. The difference is that art.52(2) also takes into account use of the mark after registration. The question raised by art.52(2) is whether by a relevant date after registration the trade mark has acquired distinctiveness through use, namely the date on which the party seeking a declaration of invalidity filed its application, see Mondelez UK Holdings & Services Ltd v European Union Intellectual Property Office, T-112/13, EU:T:2016:735, at [76] and the cases there stated. In the present instance that means the date of the counterclaim, see The Sofa Workshop at [61] and London Taxi Corp Ltd v Fraser-Nash Research Ltd [2016] EWHC 52 (Ch); [2016] FSR 20, at [179].56.The date of the counterclaim is 7 March 2016.